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 2: RCRA Subtitle D Regulatory Approach

Legal I ssues/Self

- implementing Design/Reliance on Certification by an Independent Professional Engineer/Recordkeeping, State Submission, Posting to the Internet/Finance Assurance/Alternative Approaches

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 nati onal 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

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

which regulatory path the Agency should pursue for regulating CCR, i.e., under RCRA’s subtitle

C or subtitle D provisions. EPA also conducted eight public hearings a nd took additional

comments on the proposed rule. EPA has established three dockets for this regulatory action:

EPA

- HQ

- RCRA

- 2009

- 0640; EPA

- HQ

- 2011

- 0392; and EPA

- HQ

- RCRA

- 2012

- 0028. All of

these dockets can be accessed through regulations.gov

.

After reviewing all of 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 failu res of CCR surface impoundments, groundwater

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

and fugitive dust emissions.

The Agency has developed seventeen volumes summarizing comments on major topics

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

well as a separate volume summarizing comments provided during public hearings. Since EPA

is finalizing a rule under subtitle D of RCRA, only those comments submitted on the proposed3

subtitle C rule that 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 Professional

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/Ins pections/Run

- on

Run

- off

8 Operating Criteria: Air Criteria

9 Groundwater and Corrective Action

10 Closure and Post

- Closure Care

11 Additional Comments including Overfills/ Harmonization with ELG.

12 Beneficial Use

13 Risk Assessment

14 State Authorities, Programs and Regulations

15 Compendium of Damage Cases

16 Regulatory Impact Analysis (RIA)

17 EPA’s Assessment Program

This volume addresses co mments received on the RCRA subtitle D regulatory approach

including: l egal issues ; s elf

- implementing d esign ; r eliance on c ertification by an i ndependent

p rofessional e ngineer ; r ecordkeeping, s tate s ubmission, p osting to the i nternet ; f inanc ial4

as surance ; and a lternative a pproaches

. Detailed responses to these comments can be found in the

preamble supporting this rule. In particular, commenters should review Unit V of the preamble

for a detailed discussion regarding the various elements of the subtitle D regulatory approach and

EPA’ s responses to their comments on this topic.5 

# CommentWorks ® 

# Issue Report

Initiative: Coal Combustion Residuals Proposed Rule 

### 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: 47

Section 2

- Legal Issues
No comments are associated with this issue.

Section 2.1

- Statutory Authority for Proposed Rule (35134

- 35135) Total Number of Submissions: 1 Total Number of Comments: 1



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07680

- 1 

### Organization 1 

### : Honigman Miller Schwartz and Cohn LLP on behalf of Lansing Board of Water and Light (LBWL) and Michigan State University (MSU) 

### Commenter 1 : Jeffrey L. Woolstrum Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 11.2.5 

### Comment Excerpt Text: No federal regulation or oversight of CCR disposal is necessary or appropriate in states, such as Michigan, that currently regulate the disposal and use of CCRs in a manner that is protective of6

human health an d the environment.

Response : The Agency acknowledges and appreciates this comment.

Section 2.1.1

- RCRA Subtitle C authority (35135

- 35136) Total Number of Submissions: 43 Total Number of Comments: 69



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06226

- 3 

### Organi zation 1 

### : Pennsylvania Coal Association (PCA) 

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



### Comment Excerpt Text: EPA has failed to follow the mandatory statutory process for revising RCRA Subtitle C.

When EPA proposed hazardous waste regulations under RCRA Subtitle C in 1978, Congress stepped in with the Bevill Amendment which recognized the lack of rationale in regulating CCRs and established a special process which EPA is required to follow before CCRs and other special wastes can be regulated under RCRA Subtitle C. Congress directed EPA to develop a one

- time report, study and regulatory determination for CCRs and with the issuance of the 2000 Regulator y Determination, the Bevill process was completed. This was further confirmed by the D.C. Circuit court in Solite Corp. v EPA. [Footnote 1: 952 F. 2d. 473 (D.D. Cir. 1991).] Before the EPA may propose a rule to regulate CCRs under RCRA Subtitle C, it must:

Study CCRs based on the eight study factors required under a Bevill analysis, Submit a report to Congress on the findings of the study, Conduct public hearings and provide an opportunity for comment on the report, and Determine whether to promulgate reg ulations under Subtitle C or determine that the regulations aren't necessary. [Footnote 2: Solid Waste Disposal Act §3001, 42 USC §6921(b)(3)(C)]

Because EPA has not completed the mandatory statutory process, they cannot regulate CCRs
under RCRA Subtitle C.

Response: As discussed in Unit IV of the preamble to this final rule, the Agency is deferring its

Bevill determination and as such comments on the mandatory statutory process are premature and outside the scope of t oday’s rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06252

- 2 

### Organization 1 

### : Minnkota Power Cooperative, Inc. (Minnkota) 

### Commenter 1 : John T. Graves7

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



### Comment Excerpt Text: Minnkota is a member of the National Rural Electric Cooperative Association (NRECA) and we agree with NRECA's position that EPA's proposal to regulate CCRs under Subtitle C of RCRA is arbitrary and capricious and in direct contravention of th e Bevill Amendment.

Response : The Agency acknowledges and appreciates this comment . The commenter is directed to the discussion in Unit IV of the CCR preamble where EPA discusses its decision to
defer its Bevill determination and promulgat e a subtitle D rule for the disposal of CCR in surface impoundments and landfills.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06252

- 6 

### Organization 1 

### : Minnkota Power Cooperative, Inc. (Minnkota) 

### Commenter 1 : John T. Graves Commenter Type: Electric Utility Company
C lassification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: EPA Cannot Promulgate Subtitle C Regulations for CCRs EPA may not reverse its final Regulatory Determinations that CCRs do not warrant regulation under RCRA Subtitle C. Even setting aside EPA's failure to comply with the Regulatory Flexibility Act as described above, the Proposal's Subtitle C option is fundamentally flawed because EPA lacks the authority to reverse its 1993 and 2000 Regul atory Determinations, both of which found that CCRs do not warrant Subtitle C regulation. Congress established a detailed process by which EPA could determine whether and how to regulate CCRs under RCRA Subtitle
C

- and without which EPA has no authority to impose Subtitle C regulation on CCRs.

Response: The commenter is referred to Unit IV of the preamble for a discussion of this point.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06254

- 4 

### Organization 1 

### : Sunflower Electric Power Corporation 

### Commenter 1 : Paul E. Re ynolds Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:8



### Comment Excerpt Text: Sunflower Electric is a member of the National Rural Electric Cooperative Association (NRECA) and we agree with NRECA’s position that EPA’s proposal to regulate CCRs under Subtitle C of RCRA is arbitrary and capricious and in direct contravention of the Be vill
Amendment.

Response: The commenter is referred to Unit IV of the preamble for a discussion of this point.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06254

- 8 

### 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: EPA Cannot Promulgate Subtitle C Regulations For CCRs EPA may not reverse its final Regulatory Determinations that CCRs do not warrant regulation under RCRA Subtitle C. Even setting aside EPA’s failure to comply with the Regulatory Flexibility Act as described above, the Proposal’s Subtitle C option is fundamentally flawed because EPA lacks the authority to rever se its 1993 and 2000 Regulatory Determinations, both of which found that CCRs do not warrant Subtitle C regulation. Congress established a detailed process by which EPA could determine whether and how to regulate CCRs under RCRA Subtitle
C

– and without wh ich EPA has no authority to impose Subtitle C regulation on CCRs.

Response: In that the Agency has decided to defer its Bevill determination at this time, the subject of the proper process for making a final Bevill determination is outside the scope of this
rule. The commenter is referred to Unit IV of the preamble for a discussion of this point.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06275

- 2 

### 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: Examine Context Assigned/Due:
Other Sections: 2.1.2 

### Comment Excerpt Text:9

RCRA’s existing statutory structure is not appropriate for regula ting CCRs at the federal level and EPA should defer any action unless and until Congress amends RCRA to provide specific authority for EPA to regulate CCR disposal.

Response: The commenter is referred to Unit V of the preamble for a discussion of this po int.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06275

- 24 

### 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: Examine Context Assigned/Due:
Other Sections: 2.1.2 

### Comment Excerpt Text: To The Extent That EPA Determines CCRs Warrant Federal Regulation, Congress Should Amend RCRA To Provide EPA With The Appropriate Tools For Promulgating An d Enforcing Such Regulations.

The preceding section of these Comments demonstrates that the Michigan Legislature enacted a comprehensive statutory scheme governing the use and disposal of CCRs in Michigan. This statutory scheme authorized MDNRE to promulg ate regulations that are tailored to CCRs and that ensure CCRs are either used in an environmentally safe manner, or disposed of in landfills that comply with appropriate location, design, construction, and operating requirements. The United States Congres s, however, did not grant to EPA similar regulatory authority over CCRs in RCRA. Accordingly, EPA’s current proposal attempts to fit the “square peg” of CCRs into the “round holes” of either Subtitle D or Subtitle C of RCRA. Neither option provides a good fit.

Response: The commenter is referred to Unit V of the preamble for a discussion of this point.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06275

- 27 

### 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: Examine Context Assigned/Due:10

Other Sections: 2.1.2 

### Comment Excerpt Text: LBWL and MSU believe that, instead of EPA’s current effor t to force CCR regulations into an
ill

- fitting statutory structure, EPA should allow Congress to address this issue and, if appropriate, amend RCRA to provide EPA with the express authority to achieve its regulatory objectives.
LBWL and MSU concur with the following statement from the Congressional Research Service contained in its September 21, 2010 report (attached as Exhibit H) concerning Congress’s legislative options concerning CCR regulations: [Footnote 36: Congressional Research Service, Regulating C oal Combustion Residuals: Issues for Congress]

Members of Congress have several legislative options to address concerns expressed by [EPA, environmental groups, and industry]. Congress may choose to direct EPA to leave the Bevill exemption in place and c ontinue to exempt the material from regulation as hazardous waste. This may be problematic in that the original amendment directed EPA to hold the exemption pending a report to Congress on various factors regarding the waste’s volume, disposal, and actual harm and potential risks associated with its disposal. For the past 30 years, EPA has been gathering that information and has determined that improper management poses significant risks to human
health and the environment and that those risks could be mini mized through some form of national regulation. Instead of (or in addition to) prohibiting EPA from regulating the waste under Subtitle C, Congress could choose to give EPA additional authority to regulate it under Subtitle D. It may specifically direct EP A to establish waste management criteria under Subtitle D applicable to solid waste management facilities that receive CCW. Such provisions could potentially draw from the existing distinction between an “open dump” and a “sanitary landfill” (a facility fr om which there is no reasonable probability of adverse effects on health or the environment from disposal of solid waste). Similar to the HSWA amendments that authorized EPA to establish criteria applicable to MSW landfills, Congress could specifically aut horize EPA to revise existing solid waste management criteria to include standards applicable to landfills and surface impoundments that accept coal combustion wastes. Further, Congress could require states to adopt a permit program to assure that coal com bustion waste management facilities within the state meet EPA’s management criteria.

Congress could also choose to create a new subtitle under RCRA (a Subtitle K) that would specifically address issues unique to the management of CCW. Such a proposal coul d include a number of legislative provisions, but, broadly, could direct EPA to develop waste management standards applicable to disposal units that accept CCW (similar to Subtitle D), but also provide EPA with federal enforcement authority to require stat es to implement those standards (similar to Subtitle C) while avoiding labeling the material a “hazardous” waste. Such a proposal could also authorize EPA to specifically regulate certain beneficial uses (such as construction fill).

Congress may also choo se to do nothing. That is, Congress may allow the current rulemaking process to continue and allow EPA to select either its Subtitle C

- or D

- related proposal.

Response: The commenter is referred to Unit V of the preamble for a discussion of th ese points.11



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06275

- 43 

### 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: Examine Context Assigned/Due:
Other Sections: 2.1.2 

### Comment Excerpt Text: Neither Subtitle C nor Subtitle D of RCRA provides the proper framework for appropriate federal regulation of CCRs and EPA should defer the promulgation of such regulations until Congress can review this issue and, if necessary, amend RCRA to expressly authorize EPA’s regulation of CCRs.

Response: The commenter is referred to Unit V of the preamble for a discussion of this point.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06356

- 1 

### 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:

II. Mana gement of CCRs

- Comments On The Regulatory Approaches Proposed In The Notice (75 Fed. Reg. at 35221).

A. As a threshold matter, EPA lacks jurisdiction to lawfully promulgate either of the rules proposed in this Docket. Congress prohibited EPA from regula ting coal ash until the Agency submits a report to the U.S. Senate Committee on Environment and Public Works and the U.S. House Committee on Energy and Commerce evaluating, among other things, alternatives to existing CCR disposal methods, the costs of CCR disposal alternatives, the impact of CCR regulation on the use of coal and other natural resources, and the current and potential utilization of CCRs. See 42 U.S.C. §§ 6921(b)(3)(A); 6982(n). In the past, EPA complied with the law. See 75 Fed. Reg. at 351 50

- 151 (Bevill determinations were based on the findings of “Reports” to Congress pursuant to “RCRA section 8000(n)”); www.epa.gov/osw/nonhaz/industrial/special/fossil/fsltech.htm. Yet, EPA has not prepared and submitted a “Report” to Congress prior to thi s rulemaking as required by RCRA, nor explained the justification for its failure to do so. See generally 75 Fed. Reg. at 35134 (discussing statutory12

authority for the action without alleging 42 U.S.C. § 6921(b)(3)(A) compliance). Similarly, EPA
has failed to cite or comply with 42 U.S.C. § 6921(b)(3)(C), which mandates public “hearings” and opportunities for comment no later than “six months after the date of the” report to Congress, at which time EPA shall “determine to promulgate regulations” for CCRs or “determine that such regulations are unwarranted.” See 75 Fed. Reg. at 35134. Therefore, EPA lacks jurisdiction and this rulemaking should be suspended and the Docket withdrawn until EPA has met all of its 42 U.S.C. § 6921(b)(3) obligations

Response : The Agency acknowledges and appreciates this comment, however the process by which the Agency makes a final Bevill Determination is outside the scope of this rulemaking in that the Agency has decided to defer its final Bevill Det e rmination. The commenter is referred

to Unit IV of the preamble for a discussion on this point.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 95 

### Organization 1 

### : Duke Energy 

### Commenter 1 : Mike Stroben Commenter Type: Electric Utility Company
Classification: Substantive Comment Categ ory: Current Task: Examine Context Assigned/Due:
Other Sections: 3.4.1.4.6 

### Comment Excerpt Text: Finally, one of the many significant problems with the Subtitle C option is the unprecedented and unlawful proposal to extend RCRA Subtitle C jurisdiction to previously closed and/or inactive CCR surface impoundments. Id. at 35177. Even if such impoundments do not receive CCR after the effective date of the rule, EPA would require these impoundments to meet certain closure requirements. This would mean that previously closed and inactive surface impoundments

- many of which Duke Energy properly closed decades ago under the existing state solid waste programs, have changed owners, and/or now have structures built on top of them

- would be regulatorily resurrec ted as “active” CCR disposal units. Consequently, they would be subject to full Subtitle C hazardous waste regulation. Such a requirement would be illogical and exceedingly costly.

Response : EPA is not pursuing a subtitle C rule for the management of CCR s. The reader is
refer r e d to the preamble discussion in the rule for a complete discussion on the rationale
behin d the Agency’s decision to regulate CCR under subtitle D of RCRA. See, in particular, Unit IV of the preamble (i.e., applicability), that dis cusses the Agency’s reasoning for requiring inactive CCR surface impoundments to be subject to the requirements of this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06400

- 2 

### Organization 1 

### : Waste Management (WM) 

### Commenter 1 : Susan Briggum13

Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.2 2.1.6 11.3 

### Comment Excerpt Text: We are surprised, however, by the false dichotomy posed in EPA’s proposal of two options to

r egulate CCRs when disposed: either as a Resource Conservation and Recovery Act (RCRA) Subtitle C regulated hazardous waste or as a RCRA Subtitle D nonhazardous waste subject only to citizen suit enforcement, not permitting, at disposal facilities. RCRA doe s not compel this legal interpretation of EPA’s authority. Nor is it wise to view RCRA through this narrow lens, because it creates an artificial constraint on EPA’s ability to fulfill its mission under RCRA to do what is necessary to protect human health and the environment. By taking the position that EPA’s authority under RCRA goes to only two relatively small waste streams, EPA abdicates responsibility to assure protection in the handling of the vast majority of wastes generated in the
U.S.

Response : EPA is not pursuing a subtitle C rule for the management of CCRs. The reader is
refer r e d to the preamble discussion in the rule for a complete discussion on the rationale
behin d the Agency’s decision to regulate CCR under subtitle D of RCRA. See, in particular, Unit IV of the preamble.



### 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 C ontext Assigned/Due:
Other Sections: 2.1.2 2.1.6 7.3.3 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 se lf

- 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 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 environme nt. 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 was te (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.14

This limitation is very shortsighted, and undervalues the importan t 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 permittin g 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 and detailed guidelines evident in the RCRA Subtitle C regulations and Subtitle D criter ia for MSW landfills, state regulatory authorities responded with programs implementing 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 this comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06424

- 1 

### Organization 1 

### : Garrett & Moore, Inc. 

### Commenter 1 : Bernie Garrett Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Co ntext Assigned/Due:
Other Sections: 3.3.2.1 

### Comment Excerpt Text: Subtitle C Applicability

- CCRs do not exhibit characteristics of hazardous waste

Hazardous waste is defined as waste that exceeds EPA

- established toxicity contaminant
concentrations. The contaminants typically of concern with CCRs include metals such as Arsenic, Mercury, Barium, Cadmium, Selenium, Chromium, Lead, and others. While the contaminants present in CCRs can be a health concern, the contaminant concentrations found in CCRs are ty pically well under EPA’s hazardous thresholds.

Response : The Agency acknowledges and appreciates this comment. The reader is referred to the discussion in Unit X of the preamble supporting this rule, and the companion risk
assessment for a discussion of the chemical characteristics of CCR.15



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06446

- 3 

### Organization 1 

### : Hoosier Energy Rural Electric Cooperative (REC), Inc. 

### Commenter 1 : Michalene Reilly Commenter Type: Electric Utility Company
Classification: Substantive
C omment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: V. EPA Cannot Promulgate Subtitle C Regulations For CCRs

EPA may not reverse its final Regulatory Determinations that CCRs do not warrant regulation
under RCRA Subtitle C. Even setting aside EPA’s failure to comply with the Regulatory Flexibility Act as described above, the Proposal’s Subtitle C option is fundamentally flawed because EPA lacks the authority to reverse its 1993 and 2000 Regulatory Determinations, both of

w hich found that CCRs do not warrant Subtitle C regulation. Congress established a detailed process by which EPA could determine whether and how to regulate CCRs under RCRA Subtitle
C

– and without which EPA has no authority to impose Subtitle C regulation on CCRs

Response : The commenter is referred to the preamble discussion in Unit IV of the rule, as well as the discussion on statutory authority found in Unit II of the preamble discussion.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06534

- 3 

### Organization 1 

### : La farge North America Inc. 

### Commenter 1 : Brian Gasiorowski on behalf of Craig S. Campbell Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: We stress that in RCRA, Congress explicitly mandated that EPA complete several distinct steps

– in a specified sequence

– before EPA could ever be authorized to propose actual Subtitle C regulations. Yet EPA proposed its Subtitle C regulations on June 21, 2010 without having fir st completed any of the statutorily

- mandated steps.

The key, discrete, steps mandated by statute are:

1. EPA must perform a “detailed and comprehensive study” of CCRs pursuant to eight statutory factors. RCRA § 8002(n).

2. After completing such a study, EPA must publish a “Report to Congress” based on the study, that includes “appropriate findings.” EPA must submit that Report to two specified congressional16

committees (one House, one Senate). Id.

3. After that submission, EPA must conduct public hearin gs and provide an opportunity for public comment on the Report to Congress and the findings contained in that Report. RCRA § 3001(b)(3)(C).

4. After that public process, EPA must publish a “Regulatory Determination” in the Federal Register, based on the r ecord developed through steps 1

- 3. The Determination must be accompanied by an “explanation and justification” and either (i) conclude that regulation of CCRs under Subtitle C is not warranted, or(ii) “determine to promulgate” Subtitle C regulations
for CC Rs. Id.

5. If EPA concludes the former (regulation of CCRs under Subtitle C is not warranted), that is the end of the process. Id.

6. If EPA “determines to promulgate” Subtitle C standards, it must of course then prepare proposed rules and publish them f or public comment in the Federal Register. RCRA § 3004(a); 5 U.S.C. § 553

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found i n Unit II of the preamble discussion. However, the process by which a final Bevill Determination is outside the scope of today’s rule, in that we are deferring Bevill and not making a final Bevill

determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06722

- 10 

### Organization 1 

### : Arkansas Electric Cooperative Corporation (AECC) 

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



### Comment Excerpt Text: EPA Cannot Promulgate Subtitle C Regulations For CCRs

EPA may not reverse its final Regulatory Determinations that CCRs do not warrant regulation under RCRA Subtitle C. Even setting aside EPA's failure to comply with the Regulatory Flexibility Act as described above, the Proposal's Subtitle C option is fundamentally flawed because EPA lacks the authority to reverse its 1993 and 2000 Regulatory Determinations, both of which found that CCRs do not warrant Subtitle C regulation. Congres s established a detailed17

process by which EPA could determine whether and how to regulate CCRs under RCRA Subtitle
C

- and without which EPA has no authority to impose Subtitle C regulation on CCRs.

Response : The commenter is referred to the preamble di scussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06722

- 26 

### Organization 1 

### : Arkansas Electric Cooperative Corporation (AECC) 

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



### Comment Excerpt Text: AECC is a member of the National Rural Electric Cooperative Association (NRECA), and we agree with NRECA's position that EPA's proposal to regulate CCRs under Subtitle C of RCRA is arbitrary and capricious and in direct contravention of the Bevill Amendment.

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06722

- 27 

### Organization 1 

### : Arkansas Electric Cooperative Corporation (AECC) 

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



### Comment Excerpt Text: AECC is a member of the National Rural Electric Cooperative Association (NRECA) and we agree with NRECA's position that EPA's proposal to regulate CCRs under Subtitle C of RCRA is arbitrary and capricious and in direct contravention o f the Bevill Amendment.18

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detail ed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06726

- 4 

### 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:
Other Sections: 2.1.6 

### Comment Excerpt Text: EPA's regulatory process is contrary to the intent of Congress for a one

- time finding under the Bevill Amendment whether CCRs should be designated as hazardous wastes. Congress did not intend for an ongoing 30

- year study of coal ash. An exhaustive and detailed study was completed, findings reported to Congress in 2000, and any chan ges to these findings must require a revisit with Congress before creating new regulations, as described below.

Congress enacted RCRA in 1976. Subtitle C of RCRA, 42 U.S.c. §§ 6921

- 6931, generally established a "cradle to grave" management scheme governi ng the generation, transportation, treatment, storage and disposal of the hazardous wastes that would be subject to this stringent RCRA Subtitle C program.

On December 18, 1978, EPA proposed regulations identifying hazardous waste under RCRA
Subtitle C. 43 Fed. Reg. 58,946 (Dec. 18, 1978). EPA proposed to regulate wastes from fossil fuel combustion, including CCRs, as well as certain other wastes, as "special wastes." 43 Fed. Reg. at 59,015. The EPA 1978 proposal explained that special wastes would be sub ject to fewer regulatory requirements because they were generated in "very large volumes," "posed relatively low" risks, and "were not amendable [sic] to the control techniques" proposed for hazardous waste treatment, storage and disposal. 43 Fed. Reg. at 58,992.

EPA abandoned the special waste concept, however, when the agency promulgated final hazardous waste regulations in 1980. 45 Fed. Reg. 33,084 (May 19, 1980). Thus, EPA's final rule, which was scheduled to take effect on November 19, 1980, would hav e treated CCRs as any other waste, subject to the full requirements of the final RCRA Subtitle C regulations.

Recognizing the absurdity of regulating CCRs and other special wastes in such an inflexible, onerous manner, Congress stepped in before the effe ctive date of the final Subtitle C regulations and provided relief in October 1980 with the Bevill Amendment. See 42 U.S.C. §§ 6921(b)(3)(A), (c)6982(n). As a counterpoint to EPA's prior actions described above, the Bevill Amendment established a special p rocess, which EPA was required to follow before CCRs and the other special wastes could be regulated as hazardous wastes under Subtitle C of RCRA. See19

also, EDF v. EPA, 852 F.2d 1309, 1314 (D.C. Cir. 1988) ("Indeed, our reading of the statute and legislati ve history strongly suggests that Congress designed the Bevill Amendment to break with the previous approach to regulation of hazardous industrial wastes.").

First, the Bevill Amendment established a temporary exemption from regulation under Subtitle C, until the completion of the study and submittal of the report described below. 42 U.S.C. § 6921(b)(3)(A). Second, Congress directed EPA to conduct a "detailed and comprehensive study"
on the adverse effects on human health and the environment of CCRs and o ther special wastes. 42 U.S.C. § 6982(n). In contrast to the manner in which EPA otherwise was going to decide how to determine if wastes were hazardous and subject to Subtitle C under the regulations that were to become effective on November 19, 1980, Con gress expressly directed that the Bevill study include an analysis of: 1. the source and volumes of CCRs generated per year; 2. present disposal and utilization practices; 3. potential danger, if any, to human health and the environment from the disposa l and reuse of such materials; 4. documented cases in which danger to human health or the environment from surface runoff or leachate has been proved; 5. alternatives to current disposal methods; 6. the costs of such alternatives; 7. the impact of thos e alternatives on the use of coal and other material resources; and 8. the current and potential utilization of such materials.

Third, Congress directed that EPA publish a report on such study, which was to include "appropriate findings," not later than 24 months after October 21, 1980. Id The Bevill Report
was to be submitted to the Committee on Environment and Public Works of the United States Senate and the Committee on Energy and Commerce of the United States House of Representatives. Id

Fourth, the Bevill Amendment further stipulated that within six months after the Report to Congress, EPA, after public hearings and the opportunity for comment, had to determine whether to promulgate regulations under Subtitle C for CCRs, or determine that such regul ations were unwarranted. 42 U.S.C. § 6921(b)(3)(C). Finally, if EPA determined that such regulations were warranted, EPA could then engage in notice and comment rulemaking to promulgate the Subtitle C regulations. See American Portland Cement Alliance v. E PA, 101 F.3d 772, 775 (D.C. Cir. 1996) ("Section 3001(b)(3)(C) provides that the product of the notice and comment process [on the Report to Congress] will be a determination of whether regulation is warranted in the future, not regulations themselves.").

EPA failed to meet the Bevill Amendment's statutory deadline of October 21, 1980 for publication of a Report to Congress on fossil fuel combustion wastes. In Gearhart v. Reilly, No.
91

- 2435 (D.D.C. June 30, 1992), EPA entered into a Consent Decree which divided fossil fuel combustion wastes into two categories, and agreed to follow the Bevill process separately for the two categories. EPA had actually published its First Report to Congress on fossil fuel
combustion wastes from coal fired utilities on Marc h 8, 1988. 53 Fed. Reg. 9976 (Mar. 28, 1988). On August 9,1993, EPA issued a regulatory determination that regulation of four large20

volume fossil fuel combustion wastes from coal fired utilities (fly ash, bottom ash, boiler slag, and flue gas desulfurizati on waste) as hazardous is "unwarranted" under RCRA Subtitle C. 58 Fed. Reg. 42,466.

In the second phase of the Bevill utility industry process, EPA addressed issues of comanagement, ash derived from co

- burning of coal from non

- hazardous solid waste, ash derived from clean coal combustion, and combustion residues from burning oil and natural gas. EPA submitted its second utility Report to Congress on March 31, 1999. 64 Fed. Reg. 22,820 (April 28, 1999). On April 25, 2000, EPA issued its Phase II Regulatory Determination. 65 Fed. Reg. 32,214 (May 22, 2000). EPA concluded in the Phase II Bevill Regulatory Determination that hazardous waste regulation under Subtitle C for the remaining fossil fuel combustion wastes was "not warranted." 65 Fed. Reg. at 32,215.

An analysis of the Bevill Amendment reveals that the above

- described special Bevill process established by Congress provided for a one

- time evaluation of CCRs and the other special wastes. First, the Bevill Amendment by its terms calls for a "study" and a "report." 42 U.S.C. §§ 6982(n). The use of the singular, as well as the statutory context, means that Congress deliberately established a one

- time study and one

- time Report to Congress obligation. Similarly, Congress called for a one

- time regulatory dete rmination when it stated that "not later than six months after the date of submission of the applicable study" EPA should "either determine to promulgate regulations ... or determine that such regulations are unwarranted." 42 U.S.C. § 6921(b)(3)(C).

Secon d, Congress made it clear it was establishing a one

- time study, repOli and regulatory determination obligation when it required that the report and study be completed by a date certain, i.e., October 21, 1980. 42 U.S.C. § 6982(n). Finally, the Bevill Amend ment established a temporary exemption from RCRA Subtitle C regulation for the special wastes, an approach
consistent with a one

- time study, report and regulatory determination. 42 U.S.C. § 6921(b)(3)(A).

Moreover, if Congress had intended to extend the Bevill process thirty years beyond the 1980 date Congress established for completion of the Bevill study and Report, Congress would have done so explicitly. That Congress did not do so further confirms that it intended that the Bevill process consist of a one

- time report, study and regulatory determination for CCRs. Thus, with the issuance of the 2000 Regulatory Determination, the Bevill process for fossil fuel combustion wastes, including CCRs, was completed. For all the above reasons, the Bevill Amendment
established a one

- time study, report and regulatory determination for CCRs. Direction to EPA was made clear many years ago: conduct a study, determine whether CCR's should be regulated as a hazardous waste, report to Congress and then act accordingly. EPA completed their assigned work and reported to Congress that CCRs should not be regulated as Subtitle C hazardous wastes. EPA cannot now decide on its own to change its mind, contrary to Congressional intent and without any Congressional reporting, consult ation or direction, and simply promulgate new hazardous waste regulations

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of21

the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06817

- 13 

### Organization 1 

### : Portland Cement Association 

### Commenter 1 : Robert Hirsch Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: EPA is well aware that, in its implementation of RCRA, the agency mus t balance the statute’s two goals: (1) protecting human health and the environment, and (2) encouraging reuse and recycling. While it is clear that EPA has a responsibility to protect human health and the environment, it is also clear that Congress did not intend for EPA to subjugate RCRA’s companion directive to conserve resources by the reuse and recycling of materials that would
otherwise be discarded when EPA has not first demonstrated that human health and the environment would not be protected if a ma terial is reused or recycled or, as is being proposed in this rulemaking, could not be protected unless the disposal of the material is regulated under RCRA subtitle C. [FN 4: PCA will discuss EPA’s failure to have demonstrated this later in these

comments .] In other words, both goals are of equal importance and should, as a general rule, be treated as such by EPA.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06817

- 17 

### Organization 1 

### : Portland Cement Association 

### Commenter 1 : Robert Hirsch Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: As we have discussed in some detail throughout these comments, the im pact of subtitle C regulation would not only be counter to EPA’s statutory duty to promote waste recycling and reuse, but such regulation would also have severe environmental and economic consequences.

Response: The Agency acknowledges and appreciates the comment. The commenter is also referred to the discussions in Units IV and VI of today’s rule for additional discussion.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06820

- 6 

### Organization 1 

### : Western Business Roundta ble22



### Commenter 1 : Holly Propst Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.2 2.1.3 

### Comment Excerpt Text: 2. Treatment of CCPs as “hazardous waste” under RCRA Subtitle C is inappropriate.

The Roundtable joins dozens of Members of Congress, state policymakers, including the National Governors Association, Western Governors Association, numerous state environm ental protection agencies and vast numbers of private parties in opposing categorization of CCRs as hazardous waste under Subtitle C of RCRA. Such a step would have far

- reaching and negative impacts on the U.S. economy and severely hamper the energy produc tion and electricity generation sectors’

– including a number of Roundtable members’

– abilities to meet the nation’s burgeoning energy demands.

The Roundtable wishes to associate itself with the detailed comments submitted by a variety of organizations, including the Utility Solid Waste Activities Group (USWAG), NMA and others, regarding the legal frailties associated with this alternative. In short: the proposed RCRA Subtitle C option would constitute an impermissible reversal of the Agency’s 2000 final Bevill Regulatory Determination for CCRs.

Such a reversal would be a direct contravention of the plain language of Subtitle C, which lays out clear and specific procedures EPA is to follow to determine whether and how to regulate
CCRs under the Act. That statutory process sets up a one

- time

- only determination. It does not contemplate reversal of the final determination.

Even assuming the statute did allow EPA to make a new determination, it could not contravene the statutory procedures Congress laid out for such determinations, including: a technically

supported determination, reporting to Congress, consultation with states and public stakeholder input.

Also disturbing: the Subtitle C proposal seems to imply that EPA will, for the first time, look to

a pply RCRA retroactively. The law has always been prospective, as it relates to regulatory requirements. Yet, in this alternative, EPA seems to be seeking regulation of inactive or previously closed CCR surface impoundments. This seems to us outside the rec ognized scope of
the statute.

Response: With respect to this last point, the Agency refers the commenter to the discussion in Unit VI (applicability) that discusses the Agency discussion to apply this rule to inactive CCR surface impoundments.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06825

- 3 

### Organization 1 

### : National Solid Wastes Management Association (NSWMA)23



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



### Comment Excerpt Text: Also, EPA did not follow the mandatory statutory process for revising Bevill Amendment waste before issuing RCRA Subtitle C regulations for CCR. Title 42 Section 6921(b)(3)(c) and 6982(n)
of the United States Code for identification and listing of hazardous waste, and a court decision (American Portland Cement Alliance v. EPA, 101F.3d 772, 777 (D.C. Cir. 1996)) state that before EPA proposes regulations of CCR under RCRA Subtitle C, it must:

1. Conduct a comprehensive study on the waste and submit a report to Congress on the adverse effects on human health and the environment on the disposal practice;

2. Receive comments and hold public hearings on the report to Congress; and

3. Issue a regulatory determination as to whether the regulation is warranted based on the information obtained by the report to Congress, public hearings, and comments.

For CCR, EPA prepared two previous reports to Congress when they determined that CCR should remain exempt from regulation u nder RCRA Subtitle C. However, EPA has not submitted such a report for the regulatory determination that CCR should be a hazardous waste

.

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determi nation , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06833

- 30 

### 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: The Subtitle C Proposal to regulate inactive and/or previously closed surface impoundments is
unlawful.

EPA's proposed Subtitle C option represents an unprecedented expansion of RCRA's Subtitle C24

jur isdiction by extending hazardous waste controls to previously closed, inactive CCR disposal
units. This is the most far

- reaching application of hazardous waste disposal controls in EPA's 30·year implementation of the federal program and would subject CCRs to more onerous disposal controls than for any other hazardous waste regulated under Subtitle C.

Response: The Agency is not promulgating a RCRA subtitle C rule, however, the Agency is regulating inactive CCR surface impoundments as defined in the rule. The reader is referred to Unit VI of the preamble, in particular the section on applicability of the rule for a discussion of

how EP A is regulating inactive CCR surface impoundments.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06863

- 12 

### 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: 2.1.3 2.1.4 

### Comment Excerpt Text: EPA completed the Bevill regulatory pro cess for CCRs in 2000; the statute does not authorize EPA to reverse that decision. EPA has completed the Bevill process pursuant to a judicially

imposed deadline and determined, in accordance with the congressionally

- mandated decision

making process, that CCRs do not warrant regulation under Subtitle C. The statutory decision

making process is complete and RCRA does not authorize EPA to decide to “take a second bite at the apple” and reverse its final CCR Regulatory Determinations in a manner of its own
ch oosing. Congress established a detailed process by which EPA could determine whether and how to regulate CCRs under RCRA Subtitle C. EPA has completed that statutory process, determining that CCRs do not warrant regulation under RCRA Subtitle C, and concl uded instead that CCRs warrant regulation under RCRA’s Subtitle D non

- hazardous waste program. The statute does not contemplate, let alone authorize, EPA undertaking another round of the Bevill decision

- making for CCRs. If it did, the statutory process and its associated deadlines for reaching a final Regulatory Determination would have no meaning, and EPA could continually change its mind in an abbreviated fashion, as illustrated by the proposed Subtitle C option.
If EPA wishes to once more undertake the statutorily

- prescribed process for reaching a final regulatory determination for CCRs, it must obtain this authority from Congress. If Congress were to grant EPA such authority, it would be reasonable to expect that Congress would establish new statutory d eadlines and perhaps new and different statutory study factors for EPA to evaluate in undertaking an additional regulatory determination for CCRs. Absent such authority from Congress, the Agency is not empowered to alter its final 1993 and 2000 Regulatory Determinations for CCRs. Therefore, EPA cannot legally pursue the Subtitle C option.

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of25

the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06863

- 13 

### 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: Even assuming EPA had the authority to revisit and reverse its final Regulatory Determination for CCRs, the Agency’s proposed Subtitle C option does not comport with the statutory process that Congress demanded EPA adhere to in determining whether and how to regulate CCRs under RCRA Subtitle C. At a minimum, EPA must conduct thorough studies demonstrating a clear need for regulation; provide to Congress a report detailing its findings on those studies; conduct public hearings and solicit comments on that re port to Congress; issue a final determination based on the report to Congress; and provide an opportunity for public comment on that report regarding whether and how to regulate CCRs under RCRA. Congress painstakingly crafted such
mechanisms into the statu te to ensure well

- founded decision making and EPA is not at liberty to ignore such clear Congressional intent.

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the dis cussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06956

- 18 

### Organization 1 

### : Tri

- State Generation & Transmission 

### Commenter 1 : Barbara A. Walz Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excer pt Text: A. EPA may not reverse its final Regulatory Determinations that CCRs do not warrant regulation
under RCRA Subtitle C.26

The fundamental flaw in the proposed Subtitle C option is that EPA is not at liberty to reverse its final Regulatory Determinatio ns that CCRs do not warrant regulation under Subtitle C of RCRA. Because the statute does not authorize EPA to reverse these final Regulatory Determinations, EPA may not adopt the Subtitle C hazardous waste option for CCRs. Even assuming for purposes of ar gument that the statute did authorize such reversal, EPA’s proposal to regulate CCRs under Subtitle C does not comport with the Bevill Amendment’s statutorily

- prescribed
decision

- making process. While EPA’s current policy priorities may favor the Subtitle C option over the Subtitle D option, policies cannot trump the law. The United States Court of Appeals for the District of Columbia Circuit cautioned against precisely such precipitous agency action by new administrations when, in the pursuit of political and policy agendas, agencies stray beyond the plain language of their authorizing statutes: We recognize that a new administration may try to effectuate new philosophies that have been implicitly endorsed by the democratic process. Nonetheless, it is axiom atic that the leaders of every administration are required to adhere to the dictates of statutes that are also products of
democratic decision

- making. Unless officials of the Executive Branch can convince Congress to change the statutes they find objection able, their duty is to implement the statutory mandates in a
rational manner. International Ladies’ Garment Workers’ Union v. Donovan, 722 F.2d 795, 827 (D.C. Cir 1983). The D.C. Circuit’s caution rings true in this case. [Footnote 1: The same caution was echoed by in a recent speech before the Environmental Law Institute by Judge Tatel of the D.C. Circuit: [I]t's at times like these, when a new administration is determined to change environmental policy, that our commitment to the fundamental principles of administrative law is really tested... In both Republican and Democratic administrations, I have too often seen agencies failing to display the kind of careful and lawyerly attention one would expect from those required to obey federal statutes and to follo w federal statutes and to follow principles of
administrative law. In such cases, it looks to all the world that agencies choose their policy first and then later seek to defend its legality . This gets it backwards. . . . It's backwards because
whether or not agencies value neutral principles of administrative law, courts do, and they will strike down agency action that violates those principles

– whatever the president's party, however popular the administration, and no matter how advisable the initiative. "The Administrative Process and the Rule of Environmental Law, the Honorable David S. Tatel, Oct. 6, 2009, at an Environmental Law Institute symposium entitled "An Agenda for the New EPA" (emphasis added).] While Administration and EPA policies may have c hanged over the last two years, the law governing the decision

- making process by which EPA may choose to regulate CCRs under
RCRA has not

.

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determi nation , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.27



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06987

- 16 

### Organization 1 

### : Entergy Services, Inc. 

### Commenter 1 : Joseph Hantz Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: EPA Does Not Have the Authority to Reverse Its Final Regulatory Determination Under
The Bevill Amendment

EPA completed the statutorily

- required Bevill Amendment process in May 2000 when it issued its final Regulatory Determination for all remaining fossil fuel combustion wastes, including CCRs managed with certain low

- volume wastes. Based on the record evidence, hearings, and public comment on the 1999 Report to Congress, EPA once again concluded that CCRs and
other fossil fuel comb ustion wastes did not warrant regulation under RCRA’s Subtitle C hazardous waste program. EPA concluded instead that the development of national non

hazardous solid waste regulations under RCRA Subtitle D is appropriate when CCRs are disposed of in landfil ls or surface impoundments.[Footnote 4: 65 Fed. Reg. 32214 (May 22, 2000)].

Entergy believes that the primary issue with the proposed Subtitle C option is that it is premised on the notion that EPA may, at will, reverse its final Regulatory Determinations that CCRs do not warrant regulation under Subtitle C of RCRA. However, the statute does not authorize EPA to reverse these final Regulatory Determinations; thus EPA may not adopt the Subtitle C hazardous waste option for CCRs. Additionally, EPA’s proposal to regulate CCRs under Subtitle C does not meet the intent of the Bevill Amendment’s statutorily

- prescribed decision

- making

process.

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determinati on , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.



### Comment Number: E PA

- HQ

- RCRA

- 2009

- 0640

- 06987

- 17 

### Organization 1 

### : Entergy Services, Inc. 

### Commenter 1 : Joseph Hantz Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 2.1.428



### Comment Excerpt Text: In the event that Congress were to grant EPA the authority to undertake an additional regulatory determination for CCRs, Congress could establish new and different statutory deadlines and perhaps new and different statutory study fact ors for EPA to evaluate. Absent such authority from Congress, Entergy does not believe that EPA may alter its final 1993 and 2000 regulatory determinations for CCRs, nor pursue its Subtitle C proposed option.

Response : The commenter is referred to the pr eamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue

here because th e Agency is not making a final Bevill determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06988

- 17 

### 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: 3.1.2 

### Comment Excerpt Text: MJMEUC opposes regulation of CCRs as hazardous waste, and asserts that EPA has no substantive basis for doing so.

Response : The commenter is ref erred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06988

- 21 

### 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: MJMEUC asserts that EPA has overreached in the unprecedented and unlawful proposal to extend RCRA Subtitle C jurisdiction to previously close d and/or inactive CCR surface29

impoundments that are no longer receiving CCRs on the effective date of the final Subtitle C
rule.

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.



### Comment Number: EP A

- HQ

- RCRA

- 2009

- 0640

- 06992

- 2 

### Organization 1 

### : National Association of Manufacturers 

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



### Comment Excerpt Text: II. The EPA’s Reconsideration of its Prior Bevill Regulatory Determination is Contrary to Law

The EPA’s proposal to reconsider its previous regulatory determination not to regulate CCRs is contrary to the procedures set forth in the Resource Conservation and Recovery Act (RCRA).
RCRA establishes a one

- time process for making a regulatory determination, and the EPA does not have the authority to revise it now. Alternatively, even if the EPA possesses the authority to revise that determination and promulgat e Subtitle C regulations for CCRs , it must follow the detailed procedures specified in RCRA. The EPA has failed to do so here.

A. EPA Has No Statutory Authority To Revise Its Prior Regulatory Determination

RCRA establishes a one

- time special process for making Bevill regulatory determinations, and the EPA has no authority to revise its prior determination. This conclusion flows from the text, history and judicial interpretation of the Bevill Amendment.

The Bevill Amendment was enacted in response to th e EPA’s decision to abandon the “special waste” concept it initially considered for high volume, low risk wastes, such as CCRs. See 45 Fed. Reg. 33,084 (May 19, 1980). The EPA’s final rule identifying hazardous wastes under
RCRA Subtitle C was scheduled to take effect on November 19, 1980. It would have treated CCRs as any other waste, subject to the full requirements of RCRA Subtitle C. Congress intervened before this rule could take effect, enacting the Bevill Amendment. See 42 U.S.C. §§ 6921(b)(3)(A), (c )6982(n).

The Bevill Amendment established a special process, which the EPA needed to follow before CCRs and other special wastes could be regulated as hazardous wastes under Subtitle C of30

RCRA. See Envt’l. Defense Fundv. EPA , 852 F.2d 1309, 1314 (D.C. C ir. 1988) (“Indeed, our reading of the statute and legislative history strongly suggests that Congress designed the Bevill Amendment to break with the previous approach to regulation of hazardous industrial wastes”). Until the EPA completed that process, B evill wastes, including CCRs, were temporarily exempted from regulation under Subtitle C. 42 U.S.C. § 6921(b)(3)(A).

The Bevill process specified by Congress involved four separate steps: 1. First, the EPA was to conduct “a comprehensive study and submi t a report on the adverse effects on human health and the environment, if any of the disposal and utilization of” CCRs to two Congressional Committees

- the Committee on Environment and Public Works of the United States Senate and the Committee on Energy a nd Commerce of the United States House of Representatives. 42 U.S.C. § 6982(n). This report to Congress (RTC) was to be submitted within 24 months of October 21, 1980 ( i.e. , by October 21, 1982), and was to include an analysis of eight different issues. Id

. ; 65 Fed. Reg. 32218 (describing procedural and substantive requirements for preparing and submitting RTCs). 2. Second, the EPA was required to receive comments and hold public hearings on the RTC. 42 U.S.C. § 6921(b)(3)(C). 3. Third, following the publ ic comment, and within six months of submission of the RTC, the EPA was to issue a “regulatory determination” as to whether Subtitle C regulation of CCRs (and the other special wastes identified in RCRA § 8002(n)) was warranted based on the “information
de veloped or accumulated pursuant to such study, public hearings, and comment.” Id.; In re: Leed Foundry, Inc. , 13 E.A.D. ___, RCRA (3008) Appeal No. 07

- 02 (Feb. 20, 2008) at 9

- 10 (describing preparation and submission of report to Congress as “statutory pre requisite” to issuance of regulatory determination). 4. Finally, only after these preliminary steps were completed and only if the regulatory determination found it to be warranted, the EPA was to propose and issue regulations to require
that CCRs be mana ged under Subtitle C. 42 U.S.C. § 6921(b)(3)(A); see also American Portland
Cement Alliance v. EPA , 101 F.3d 772, 777 (D.C. Cir. 1996) (describing how RTC and regulatory determination precede rulemaking to establish Subtitle C regulations).

Although it m issed the statutory deadlines, the EPA already completed this process, preparing two RTCs and issuing two regulatory determinations with respect to fossil fuel combustion wastes. [Footnote 1: Section 3001(b)(3(A) exempts from regulation (until EPA complies with section 3001(b)(3)(C)) “fly ash waste, bottom ash waste, slag waste and flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels.” CCRs are a subset of these wastes.] In 1988, the EPA submitted its first R TC related to fossil fuel combustion waste, limited to an analysis of CCRs from electric utilities. See 58 Fed. Reg. 42466 (Aug. 9, 1993). This was followed by the EPA’s regulatory determination that regulation of these
wastes under Subtitle C was not warr anted. Id. The EPA issued a second RTC for all other fossil
fuel combustion wastes in March 1999. See http://www.epa.gov/osw/nonhaz/industrial/special/fossil/volume_1.pdf. The EPA subsequently issued its regulatory determination regarding the wastes evalua ted in this RTC. See 65 Fed. Reg. 32214 (May 22, 2000). In this regulatory determination, the EPA concluded, first, that all fossil fuel combustion wastes should remain exempt from regulation under Subtitle C, and, second, that it would develop Subtitle D regulations for CCRs disposed of in landfills or surface impoundments or used to fill surface or underground mines. Id. at 32215. The EPA never issued31

any such regulations.

The text, history and judicial interpretation of the Bevill Amendment make it cle ar that RCRA
establishes a one

- time, never

- to

- be

- repeated process for evaluating CCRs and other special wastes. With the issuance of the 2000 regulatory determination, the Bevill process for fossil fuel combustion wastes, including CCRs, was completed. The EPA has no authority to begin the

process anew.

The plain text of the Bevill Amendment makes this clear. It calls for a single “study” and a single “report.” 42 U.S.C. §§ 6982(n). It establishes one set of deadlines for preparing and submitting
the RTC (within 24 months of October 21, 1980), id. , and for issuing a regulatory determination (within six months of the submission of the RTC). 42 U.S.C. § 6921(b)(3)(C). The statute’s use of the singular form and its establishment of a single set of dates by wh ich the EPA was to complete the process is a clear expression that Congress intended for the EPA to perform the required analyses only once and not repeat them at the Agency’s whim. Indeed, the Bevill
Amendment established a temporary exemption from RCRA S ubtitle C regulation for special wastes, until completion of the study, RTC and regulatory determination, providing further evidence that the Bevill regulatory process was to be performed only once. 42 U.S.C. § 6921(b)(3)(A). Moreover, the statute does not provide the EPA any explicit authority for revisiting the Bevill process once completed is conclusive proof that Congress intended the process to be completed once, shortly after enactment, not thirty years later as the EPA is attempting to do now.

The D.C. Circuit’s decision in Solite Corp. v. EPA , 952 F. 2d. 473 (D.C. Cir. 1991), confirms this conclusion. There, the court stated that “[t]he statutory provision directing the EPA to study Bevill wastes suggests by its terms that a one

- time study is suffi cient. See 42 U.S.C. § 6982(p) (“The Administrator shall conduct a detailed and comprehensive study. . . . [and] shall publish a report of such study. . . .”). Id. at 491; see also id. (“The way in which the temporary nature of the Bevill Amendment is expr essed in the statute also lends support to the EPA’s interpretation [that the Bevill Amendment establishes a one

- time Bevill process].

The EPA has long interpreted the Bevill Amendment as establishing a one

- time process for the Agency to submit its RTC a nd issue a regulatory determination for special wastes that could not be later updated even in the face of additional evidence:

"Congress directed EPA to conduct a single study of wastes generated by mineral mining and processing facilities, because of c oncern that existing wastes might not be readily amenable to Subtitle C controls and might pose relatively low hazard to human health and the environment. Moreover, contrary to some commenter’s assertions, the statutory language includes explicit
time limi t on the Bevill exclusion, which apply to the submission of the required Report to Congress and subsequent regulatory determination." 54 Fed. Reg. 15,316, 15,338 (April 17, 1989).

In sum, having completed the Bevill regulatory process for CCRs in the 199 0s, the EPA may not start over again. RCRA does not authorize the EPA to revisit its regulatory determination nearly thirty years after it was supposed to have been completed (and nearly twenty years after it was32

completed).

B. Alternatively, the EPA Has Failed To Follow the Mandatory Statutory Process for Revising its Prior Regulatory Determination and Issuing Subtitle C Regulations for Coal Combustion
Residues.

The Bevill Amendment clearly prohibits the EPA from revisiting its prior regulatory
determi nation. But, even if the EPA did possess this authority, the Agency must, at a minimum, comply with the four

- step process specified in RCRA. Thus, before issuing regulations to require management of CCRs under Subtitle C, the Agency must first (1) conduct “a comprehensive study and submit a report on the adverse effects on human health and the environment, if any of the disposal and utilization of” CCRs to Congress; (2) receive comments and hold public hearings on that RTC; and (3) issue a regulatory determ ination as to whether such regulation is warranted based on the “information developed or accumulated pursuant to such study, public hearings, and comment.” 42 U.S.C. §§ 6921(b)(3)(C), 6982(n). Only after completion of these initial steps may the EPA engag e in notice and comment rulemaking to issue Subtitle C regulations for CCRs. American Portland Cement Alliance , 101 F.3d at 777. This procedural mandate is reflected in the plain text of RCRA, court decisions and the EPA’s prior consistent interpretation a nd practice with respect to Bevill Amendment wastes. There can be no dispute that the EPA has failed to satisfy any of these statutory prerequisites to support its proposal both to revise its prior regulatory determinations not to regulate CCRs under Subti tle C and to promulgate new Subtitle C rules for CCRs.

The text of RCRA makes it clear that before the EPA can issue rules to regulate CCRs under Subtitle C, it must first engage in the multi

- step process described above. RCRA demands that the EPA prepar e and submit a RTC. 42 U.S.C. § 6982(n). It requires the preparation of a regulatory determine to “either determine to promulgate regulations under [Subchapter C] or determine that such regulations are unwarranted.” 42 U.S.C. § 6921(b)(3)(C). The state dem ands that the EPA’s determination “ be based on information developed or accumulated pursuant to such study, public hearings, and comments

. ” Id. (emphasis added). Only thereafter, if the EPA determines that such regulations are warranted, may the EPA initia te notice and comment rulemaking. See American Portland Cement Alliance , 101 F.3d at 777 (describing how RTC and regulatory determination precede rulemaking to establish Subtitle C regulations); In re: Leed Foundry, Inc. , 13 E.A.D. ___, RCRA (3008) Appeal No. 07

- 02 (Feb. 20, 2008) at 9

- 10 (describing preparation and submission of report to Congress as “statutory prerequisite” to issuance of regulatory determination). The EPA has not complied with any of these requirements to support the proposed revision to its prior Bevill determination regarding the need to regulate the disposal of CCRs and its proposed Subtitle C regulations.

In support of its new proposal to regulate CCRs under Subtitle C, the EPA recognizes that it must revise its two prior regulatory determinations. See 75 Fed. Reg. 35419. The EPA, however, has not undertaken the necessary steps to support such a change. Most significantly, the EPA has not prepared a new study under section 8002(n) regarding the impacts of disposal which includes

an e valuation of the eight statutory criteria. Having failed to conduct that study, the EPA has neither prepared nor submitted a RTC setting out its findings. The EPA also has not based its proposed revision to its earlier regulatory determinations, accepted c omment, or held public33

hearings on such a RTC. In all these respects, the EPA has plainly failed to comply with the clear procedural mandate of section 3001(b)(3)(C).

RCRA is clear that the section 8002(n) RTC must precede the EPA’s regulatory determinat ion. Section 3001(b)(3)(C) provides that the EPA’s regulatory determination “ shall be based on information developed or accumulated pursuant to [the RTC], public hearings, and comment.”
See also 65 Fed. Reg. 32218

- 19 (describing statutory requirements for issuing regulatory determinations under section 3001(b)(3)(C)). The use of the term “shall” in this section clearly indicates that the EPA has no discretion but must base its regulatory determination on a RTC. The text of section 3001(b)(3)(A) supports thi s conclusion by exempting from regulation the
Bevill wastes

– including fossil fuel combustion wastes

- “until at least six months after the date of submission of the applicable study required to be conducted [under section 8002] and after promulgation of regulations in accordance with subparagraph (C).” 42 U.S.C. § 6921(b)(3)(A). In other words, any decision to regulate Bevill wastes under Subtitle C must be preceded by (1) the RTC, (2) the regulatory determination, (3) comments on the RTC, and (4) public hearings. The EPA has not completed any of these required steps in support of its most recent proposal.

The EPA cannot claim that it has satisfied these requirements through the submission of its two prior RTCs regarding fossil fuel combustion wastes in 1988 and 1999. Those RTCs may have sufficed for the EPA’s earlier regulatory determinations, but a new study must be conducted and a new report submitted to Congress when the EPA proposes to revise or modify its earlier regulatory determination. Indeed, th e EPA cannot claim that its current proposal is supported by its earlier RTCs such that it is relieved from the obligation to conduct the necessary study, collect the required data and prepare a new RTC on which it must accept comment and hold public
heari ngs. It is clear that the EPA is not basing its proposed revision to the regulatory determination on the two prior RTCs (the latest of which is 11 years old). Rather, the EPA is relying on the new data and information that has been obtained since its earli er determinations and presented in the proposal. See 75 Fed. Reg. 35149

- 59. As such, the EPA has not complied with section 3001(b)(3)(C)’s requirement to base its regulatory determination on the RTC mandated by section 8002(n) (along with information obtai ned through public comment and hearings on that RTC).

The EPA’s prior statements and its consistent practice confirm that the Agency has interpreted the Bevill Amendment to mandate that it first conduct and submit a RTC, accept comments and hold public h earing on the RTC, and then base its regulatory determinations on that RTC. Each prior Bevill regulatory determination was preceded by these very steps, and was based upon and supported by a unique and specially prepared “detailed and comprehensive” RTC. F or example, the two prior regulatory determinations for fossil fuel combustion residues were preceded by and based upon such RTCs. See 58 Fed. Reg. 42466 (Aug. 9, 1993) (regulatory determination for CCRs generated at electric utilities, preceded by 1988 Re port to Congress); 65 Fed. Reg. 32214 (May 22, 2000) (regulatory determination for wastes from combustion of fossil fuels, preceded by 1999 Report to Congress); see alsoIn re: Leed Foundry, Inc. , 13 E.A.D. ___, RCRA (3008) Appeal No. 07

- 02 (Feb. 20, 2008) at 7 (describing history and basis of two prior fossil fuel combustion wastes regulatory determinations). Indeed, in the consent decree entered in Gearhart v. Reilly , C.A. No. 91

- 2435 (D.D.C. Ju ne 30, 2002), the EPA specifically acknowledged that, before it could issue its regulatory determination for all fossil fuel combustion wastes it needed34

first to conduct and submit the required Report to Congress).

The regulatory determinations for the o ther Bevill wastes were similarly preceded by and based upon a RTC. See 60 Fed. Reg. 7366 (Feb. 7, 1995) (regulatory determination for cement kiln dust preceded by December 31, 1993 RTC); 53 Fed. Reg. 25466 (July 6, 1988) (regulatory
determination for crud e oil and natural gas waste preceded by December 1987 RTC); 56 Fed. Reg. 27300 (June 13, 1991) (regulatory determination for 20 mineral processing wastes preceded by July 1990 RTC); 51 Fed. Reg. 24496 (July 3, 1986) (regulatory determination for extraction and beneficiation waste preceded by December 1985 RTC). As this history demonstrates, the EPA has never issued a regulatory decision regarding a Bevill waste without first preparing and relying upon a RTC. This consistent practice demonstrates the EPA’s u nderstanding that the RTC is a mandatory prerequisite for any regulatory determination.

The EPA’s proposal here is not sufficient for the required RTC and associated process for issuing regulatory determinations for Bevill wastes. As the EPA has stated:

"In the Bevill Amendment, Congress created a special process for the Agency to determine which wastes, if any, should retain the temporary statutory exclusions from RCRA Subtitle C. This process is similar to the rulemaking process, although it entails a dditional steps. In 1980, Congress required EPA to study certain wastes, . . . conduct a detailed and comprehensive study and submit it to Congress, conduct public hearings and accept public comments, and finalize its
decision in a Report to Congress ."

Se e Complainant’s Brief In Support of Its Notice of Appeal to the Environmental Appeals Board
in In re Leed Foundry, Inc. , RCRA (3008) Appeal No. 07

- 02 (EAB) (Jul. 2, 2007) (available at http://yosemite.epa.gov/OA/EAB_WEB_Docket.nsf/Filings%20By%20Appeal%20N umber/D64 D0A837C2CC2958525730C0075BDCA?OpenDocument). In this definitive statement, the EPA thus correctly recognized that the process for adopting a regulatory determination differs from and entails additional Congressionally

- mandated steps compared to th e rulemaking process
under RCRA. See also American Portland Cement Alliance , 101 F.3d at 777 (distinguishing between process for adopting a Bevill regulatory determination and regulations implementing and following such a determination). Congress had a goo d reason for creating this distinction and the additional procedures for issuing regulatory determinations

– namely that the potential economic impacts of regulating high volume, low toxicity wastes like CCRs warrant extra study
and careful consideration. In light of these concerns, the EPA cannot ignore these requirements in its rush to modify its earlier determinations and promulgate Subtitle C regulations for CCRs.

In short, even if the EPA believes that it has the authority and desires to issue regula tions under Subtitle C for CCRs, it must first follow the statutorily mandated process for issuing regulatory determinations. It must start by conducting the study required by section 8002(n), submitting the RTC, and accepting comment and holding public he arings on that RTC. Only then may the EPA propose to modify its regulatory determination, after which it may undertake the process, if any, to promulgate Subtitle C regulations. Manufacturers believe the EPA’s failure to follow this process here renders th e proposed revision to its earlier regulatory determinations and proposed Subtitle C regulations as contrary to statutory mandates.35

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06993

- 6 

### Organization 1 

### : Oglethorpe Power Corporation 

### Commenter 1 : Douglas J. Fulle Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Throughout the Proposed Rule, EPA repeatedly characterizes the Subtitle C option as being inherently more appropriate because it would entail direct federal oversight of CCB regulation. EPA assumes there will be "less compliance" or "slower compliance" und er a Subtitle D program than Subtitle C. [Footnote 5: 75 Fed. Reg. at 35159.] As noted in the preamble, "the Agency is reticent to establish a regulatory program without any federal oversight. [Footnote 6: Id. at 35157.] These statements reflect a possible distrust of the states' abilities, or perhaps the states' willingness, to implement Subtitle D standards.

As an initial matter, EPA's lack of confidence in state solid waste programs cannot overshadow the fact that CCBs simply do not meet the profile of a RCRA hazardous waste and do not fit the Subtitle C paradigm. CCBs routinely pass EPA's own Toxic Characteristic Leaching Procedure ("TCLP"), and they do not warrant listing under 40 C.F.R. § 261.11(a)(3) for the reasons spelled
out in NRECA's comments. CCBs are also produced in large quantities that are entirely out of proportion with annual generation levels of truly hazardous wastes. In fact, the sheer volume of
CCBs

- and not their inherent chemical characteristics

- led to the damage associated with TVA 's Kingston spill, which features prominently in EPA's justification for this rulemaking. RCRA authorizes EPA to regulate high

- volume, nonhazardous solid waste by setting minimum federal standards under Subtitle D. EPA lacks authority to list a nonhazardou s waste as a "special waste" under Subtitle C as a means of obtaining federal control over its disposal.

EPA now suggests abandoning its own long

- standing TCLP and its prior analysis of CCBs. However, EPA also admits in the Proposed Rule that Subtitle D would involve essentially the same technical requirements for landfills and surface impoundments as does the proposed Subtitle C option. [Footnote 7: Id. at 35133 ("EPA would implement similar technical controls under RCRA subtitle C or D.").] Subtitle C i s unique, of course, in that it would entail cradle

- to

grave hazardous waste management of CCBs. However, this aspect of Subtitle C, rather than being an enhancement, is actually a drawback that would lead to a myriad of insurmountable compliance problems relating to the point of hazardous waste generation, de minimis releases, and other issues, as detailed in NRECA's comments. EPA has not addressed those obstacles in36

the Proposed Rule. Instead, EPA simply assumes the Subtitle C approach is more appropriate because it would entail federal oversight of essentially the same set of technical controls as would be implemented by the states under Subtitle D. EPA's fundamental distrust of state regulation is irrelevant and, as discussed below, entirely unjustified.

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07395

- 4 

### 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: C. EPA has failed to follow the procedures outlined in the RCRA § 8002(n). RCRA Section 8002(n) outlines the Congress ionally mandated review procedure and the eight Bevill factors that must be considered before EPA makes a regulatory proposal regarding the disposal of CCRs. The Bevill Amendment establishes a detailed procedure that must be met in
order to determine wheth er and how to regulate CCRs under RCRA Subtitle C. This includes that EPA undertake and complete an assessment of CCRs that consider all of the eight BeviIl factors. EPA must also prepare, and submit, a Report to Congress and conduct public hearings and pr ovide an opportunity to comment on the Report. The subject proposed rules essentially serve as a reassessment and an ultimate reversal of the original Regulatory Detemlinations, and yet, EPA has failed to comply with any of the steps outlined in the Bevill Amendment. While the TCCPC acknowledges that EPA has held public hearings during this rulemaking initiative, it does not believe that such hearings, which related to a co

- proposed rulemaking initiative, serve the same function as the statutorily prescribe d public hearing under the Bevill Amendment. The result is a premature regulatory action that does not meet the requirements outlined in the Bevill
Amendment.

The TCCPC supports NRECA's detailed analysis of EPA's failure to sufficiently undertake
Bevill A mendment procedures, particularly NRECA's analysis of EPA's lack of authority to reverse a final Regulatory Determination

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating

to the Bevill determination , as well a s the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.37



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07489

- 1 

### Organization 1 

### : Council of Industrial Boiler Owners (CIBO) 

### Commenter 1 : Robert D. Bessette Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Exc erpt Text: Under current RCRA regulations, wastes that are not characteristically hazardous can be listed as hazardous if they meet certain criteria (e.g. F listed hazardous wastes per §261.31, K listed hazardous wastes per §261.32, etc). These listed wast es are presumed to pose risk from the point of generation through disposal, resulting in regulation that is commonly referred to as applying “from cradle to grave.” The rules proposed to regulate CCRs in a new Subtitle C regulatory category of “special was te” presume a fundamentally different regulatory logic: That the waste may or may not be hazardous at the point of generation, depending on how it will be used and in some instances it only becomes hazardous if sufficient quantities are disposed of in any particular site. In the parlance of a power station boiler operator, “CCRs won’t hurt you if you breathe them inside the powerhouse, CCRs will only hurt you when you pile them on the ground.” Once this determination is made, then RCRA allows EPA to regulat e it from that accumulation point all the way back to its point of generation, despite the lack of inherent risk posed. This change in regulatory philosophy represents an unprecedented expansion of EPA’s authority to regulate materials under RCRA. By this logic, any material

– regardless of the hazard it poses
to human health or the environment

– can be regulated as a Subtitle C “special waste." In other words, any materials can be regulated under RCRA due solely to the management practices employed at its disposal, rather than due to their inherent risk. By adopting this philosophy for CCBs, EPA is signaling that it can regulate any and every material it chooses if EPA decides the management practices surrounding its disposal are suboptimal. This expansion in authority is unprecedented and contrary to congressional intent by arrogating to EPA authority that Congress clearly intended to be reserved to the states

.

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill de termination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07489

- 7 

### Organization 1 

### : Council of Industrial Boiler Owners (CIBO) 

### Commenter 1 : Robert D. Bessette Commenter Type: Trade Association
Classification: Substantive38

Comment Category:
Current Task: Examine Co ntext Assigned/Due:



### Comment Excerpt Text: A. EPA lacks scientific and legal justification for Subtitle C classification of CCBs. EPA ignores fundamental science by categorically defining CCBs as hazardous.

Though all coal fired units produce CCBs, not all CCBs are the same. There are vast chemical differences among CCBs. These chemical differences dictate whether, under fundamental RCRA principles, a waste material is hazardous. Defining all CCBs as hazardous waste, or all CCBs destined for disposal as hazardous, negates the science behind the statutory program of materials classification. Congress directed EPA to "develop and promulgate criteria for identifying the characteristics of hazardous waste...taking into account toxicity, persistence, and degrada bility in nature, potential for accumulation in tissue, and other related factors such as flammability, corrosiveness, and other hazardous characteristics." SWDA §3001, 42 USC §6921. EPA's corresponding regulations define material as hazardous waste by ref erence to these statutory and other highly specific criteria. 40 CFR §261.3. Under RCRA, hazardous waste management resources are reserved for wastes that appropriately necessitate the most protective measures. [Footnote 7: See, e.g. , EPA, RCRA
Orientation Manual: Hazardous Waste Identification , available at www.epa.gov/osw/inforesources/pubs/orientat/rom31.pdf (describing factors for determining whether a waste is hazardous and explaining that wastes not exhibiting a certain degree of hazard may not be "ha zardous".)] EPA's current Proposal disregards these scientific principles and longstanding interpretation of RCRA by a simple re

- definition of either the wastes or their ultimate use, allocates scarce financial resources to the management of CCBs. This set s a dangerous precedent for other administrative re

- direction of the statutory program for waste materials management and waters down and muddies the definition of true hazardous waste. EPA references additional data and analysis in its Proposal. At best, these sources lead to the conclusion that EPA's categorical redefinition also countermands bedrock RCRA principles of resource conservation and recovery and undermines the potential replacement of virgin materials with recyclable materials.

EPA violates m andatory RCRA procedures for decisions regarding Bevill wastes by categorically defining CCRs as hazardous. Under SWDA §3001(b)(3)(A)(i) and 40 CFR §261.4(b)(4), CCBs are included in the statutory Bevill exemption as a "special waste" and not subject to S ubtitle C hazardous waste regulation.
RCRA directs EPA to address Bevill

- exempt materials under a two

- step process involving first whether the material is a hazardous waste and, second if it is hazardous, how should it be regulated. EPA does not have autho rity to distinguish between CCRs based on how they are managed when making the threshold determination of whether the material is a "hazardous
waste." In addition, RCRA imposes basic procedural requirements for making a Bevill determination and proposing S ubtitle C regulations for Bevill wastes, none of which EPA has satisfied. RCRA directs EPA to conduct a study and submit a report to Congress “on the adverse effects on human health and the environment, if any, of the disposal and utilization of” CCRs to C ongress; take comment and hold public hearings on the report; and on the basis of the information gained from39

that process, to determine whether Subtitle C regulation is warranted. SWDA §§3001(b)(3)(c),8002(n). The DC Circuit found these to be necessary pr erequisites to Subtitle C regulation in American Portland Cement Alliance v. EPA , 101 F.3d 772, 777 (D.C. Cir. 1996). In this proposed rule, EPA reverses a final Bevill determination, but has not fulfilled these statutory measures, which are clearly intend ed to permit Congress an adequate opportunity to oversee EPA’s environmental analysis and consider public comment on the threshold matters of whether and why a hazardous waste listing may be appropriate. EPA skipped those steps altogether, and instead comp els immediate consideration of the Subtitle C regulation itself, clearly violating
RCRA

.

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory aut hority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07489

- 8 

### Organization 1 

### : Council of Industrial Boiler Owners (CIBO) 

### Commenter 1 : Robert D. Bessette Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: EPA violates RCRA by proposing to list CCBs as hazardous without fully evaluating regulatory
authorities. EPA does not have the legal authority to list CCRs as a hazardous waste under Subtitle C of RCRA because EPA failed to conduct a full evaluation of federal and state regulatory progr ams applicable to CCRs. In making listing determinations for hazardous wastes under Subtitle C, EPA must consider the eleven factors set forth in 40 CFR §261.11(a)(3). One of the specific factors to consider is "action taken by other governmental agencies or regulatory programs based on the health or environmental hazard posed by the waste or waste constituent." [Footnote 8: 40 CFR 261.11(a)(3)(x).] Although EPA claims that "significant gaps" in state regulation are a primary justification for regulating CC Rs under subtitle C,[Footnote 9: 75 FR 35173] EPA concedes in its proposed rule that it has not identified and evaluated all the necessary state regulatory programs applicable to CCRs. One of the key studies relied on by EPA was a joint DOE/EPA study betwe en 1994

- 2004 entitled "Coal Combustion Waste Management at Landfills and Surface Impoundments."[Footnote 10: 75 FR 35151] EPA emphasizes several shortcomings in state regulatory programs found by the study, but acknowledges that the study only focuses on e leven states, which account for just half of the CCRs generated in the U.S, and it does not address "all of the existing regulatory requirements that states may or could impose through other authorities. [Footnote 11: Id.] Similarly, the only other study c ited by the EPA "lacks details on the substance of the state requirements." [Footnote 12: Id.] Overall, EPA admits that it "lacks any real details regarding how states, in practice, oversee the management of these materials when40

treated as wastes." [Footnot e 13: Id.] Therefore, EPA has not evaluated other regulatory programs applicable to CCRs and does not have the authority to list CCRs as a hazardous waste under subtitle C of RCRA. EPA, by its own admission, has not complied with the statutory requirements of 42 USC §6921 and the regulatory requirements of 40 CFR §261.11. EPA must conduct a thorough evaluation of the pertinent state regulatory programs before listing CCRs under subtitle C

.

Response : The commenter is referred to the preamble discussion in U nit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07680

- 2 

### Organization 1 

### : Honigman Miller Schwartz and Cohn LLP on behalf of Lansi ng Board of Water and Light (LBWL) and Michigan State University (MSU) 

### Commenter 1 : Jeffrey L. Woolstrum Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1 .2 

### Comment Excerpt Text: RCRA's existing statutory structure is not appropriate for regulating CCRs at the federal level, and EPA should defer any action on the proposal unless and until Congress amends RCRA to provide specific authority for EPA to regulate CCR disposal.

Response: The Agency acknowledges and appreciates this comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07802

- 1 

### Organization 1 

### : Alpha Natural Resources 

### Commenter 1 : Michael R. Peelish Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.2 2.1.6 7.3.1 10.4.2 

### Comment Excerpt Text: Alpha is extremely concerned with EPA's proposal to regulate Coal Combustion Residue ("CCR") as a hazardous waste under Subtitle C of the Resource Conservation and Recovery Act ("RCRA") (42 U.S.C. § 6901, etseq.) For the reasons stated below, EPA's proposed action is illegal, arbitrary and capricious, and is yet another attack on the American coal industry. Coal
conti nues to be the primary source of energy for the great majority of US electric power generation and CCR has been proven to be successfully and safely used in many beneficial41

applications. EPA's proposed action here would significantly and unnecessarily incr ease the cost of domestic energy supplies. It would also chill, if not preclude, these beneficial uses, and overwhelm state and local resources efforts to handle truly hazardous materials. The result of EPA's proposed action would be a dramatic step backwa rd in environmental protection and ongoing efforts to achieve the congressional intent of RCRA, and will result in nothing more than making the United States economy more dependent on foreign energy sources, more vulnerable to energy price increases and vo latility, and more at risk from exposure to real
hazardous wastes.

Response: The Agency acknowledges and appreciates this comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07802

- 2 

### Organization 1 

### : Alpha Natural Resources 

### Commenter 1 : Michael R. Peelish Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 2.1.4 

### Comment Excerpt Text: The proposed rule is illegal because it violates the Bevill Amendment to RCRA which specifically limits EPA's ability to regulate CCR. EPA can consider CCR regulation only in extremely limited circumstances and only after extensive analysis of the science and risk issues associated with CCR disposal. On two prior occasions, in 1993 and 2 000, EPA issued comprehensive reports pursuant to the Bevill Amendment regarding CCR and in both instances determined that CCR should not be regulated under Subtitle C. The 2000 determination noted the array of potential issues, but found that those issues did not justify or require the extreme cost and difficulty of regulating such a vast quantity of low risk material under Subtitle C.

As an initial matter, EPA's action here is illegal because EPA no longer has any authority to regulate CCR as a hazardous waste. Having submitted the required report and mage its determination that regulation of CCR as a hazardous waste is unwarranted, EPA is done. The Bevill Amendment has no language allowing EPA to revisit its determination. Unless or until Congress amends RCRA to grant EPA the authority to reconsider its 2000 findings, EPA has no authority to regulate CCR as a hazardous waste.

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as wel l as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.42



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07802

- 3 

### Organization 1 

### : Alpha Natural Resources 

### Commenter 1 : Michael R. Peelish Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 10.4.2 

### Comme nt Excerpt Text: EPA claimed to retain authority to revisit this issue in its 2000 determination primarily based on its desire to ensure that industry continued its trend toward voluntary control. Yet in issuing the current proposed action, EPA simply igno res the continuing (and expanding) trend toward control of CCR disposal, including the burgeoning development of numerous new and more sustainable beneficial uses which have expanded exponentially since EPA's 2000 determination. Not only is EPA evading the sole ground it might have for reopening its 2000 decision, it is paradoxically proposing to stop this very positive trend by taking action to stifle these beneficial uses, impede the development of further beneficial measures. As a result, EPA's proposed action would significantly expand the very risks that EPA claims to address, making that action illegal,

wrong

- headed and counter

- productive.

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill de termination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07802

- 5 

### Organization 1 

### : Alpha Natural Resources 

### Commenter 1 : Michael R. Peelish Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Ot her Sections: 2.1.6 7.3.1 10.4.2 

### Comment Excerpt Text: In short, EPA's proposed action is illegal in that it fails to follow the Bevill Amendment under which it no longer has authority to regulate CCR as a hazardous waste. It is plainly arbitrary and capricious in that it ignores its prior determinations and fails to use appropriate scientific information in support of its decision. Instead of meeting EPA's primary goal of protecting the environment, EPA's proposal will make us all less safe, forcing g reater reliance on foreign energy sources while overwhelming state resources for handling truly hazardous materials and precluding protective beneficial uses.

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating43

to the Bevill determination , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determinatio n.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08220

- 2 

### Organization 1 

### : PowerSouth Energy Cooperative 

### Commenter 1 : Dr. Keith Stephens Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: PowerSouth is a member of the National Rural Electric Cooperative Association (NRECA) and we agree with NRECA’s position that EPA’s proposal to regulate CCRs under Subtitle C of RCRA is arbitrary and capricious and in direct contravention of the Bevill Amendment.

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of the preamble d iscussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08220

- 6 

### Organization 1 

### : PowerSouth Energy Cooperative 

### Commenter 1 : Dr. Keith Stephens Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: EPA Cannot Promulgate Subtitle C Regulations For CCRs EPA may not reverse its final Regulatory Determinations that CCRs do not warrant regulation under RCRA Subtitle C. Even setting aside EPA’s failure to comply with the Regulatory Flexibility Act as described above, the Proposal’s Subtitle C option is fundamentally flawed
because EPA la cks the authority to reverse its 1993 and 2000 Regulatory Determinations, both of which found that CCRs do not warrant Subtitle C regulation. Congress established a detailed process by which EPA could determine whether and how to regulate CCRs under RCRA S ubtitle
C

– and without which EPA has no authority to impose Subtitle C regulation on CCRs.44

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08241

- 4 

### Organization 1 

### : Revolutionary Plastics, LLC 

### Commenter 1 : Steven G. Barringer and Tasha M. Newland, Holland & Hart LLP, on behalf of Revolutionary Plastics Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/ Due:
Other Sections: 2.1.5 

### Comment Excerpt Text:

IV. EPA DOES NOT HAVE LEGAL AUTHORITY TO PROMULGATE THE PROPOSED
RULE

EPA’s proposed rule would do something EPA has never done before: it would revoke Bevill
Amendment status for wastes that EPA has alr eady studied, and for which EPA has already determined that Subtitle C hazardous waste regulation was inappropriate. EPA’s proposal is a misreading of its legal authority under RCRA. Significantly, in previous rulemakings and in the
D.C. Circuit Court of A ppeals, EPA argued against the very position it takes now. [Footnote 24: See 54 Fed. Reg. 36,592 (September 1, 1989) (preamble to final mineral processing rule); 54 Fed. Reg. 15,316 (April 17, 1989) (preamble to revised proposed mineral processing rule); 5 3 Fed. Reg. 41,288 (October 20, 1988) (preamble to proposed mineral processing rule); Solite Corp. v. EPA, 952 F.2d 473 (D.C. Cir. 1991); see also discussion at pages 15

- 18 below.] However, in the preamble to the proposed rule, EPA neither acknowledges nor justifies its about

face. EPA’s failure to explain this change is by itself fatal to the proposed rulemaking.

EPA’s only justification for proposing to revoke the Bevill

- exempt status of these wastes is a reference to the May 2000 Regulatory Determinati on in which EPA stated the Agency would continue to review the issues, and would reconsider its decision that Subtitle C regulations were unwarranted based on a number of specifically identified factors, and that such reconsideration
could result in a subs equent revision to the Regulatory Determination. [Footnote 25: 75 Fed. Reg. at 35,137.] However, neither the 2000 Regulatory Determination nor the proposed rule present any justification or support for EPA’s assertion that it has the legal authority to

con tinually revisit Bevill determinations. Furthermore, EPA’s statement in the May 2000 Regulatory Determination is similar to other statements EPA has made in other RCRA rulemakings and is essentially just a place

- saver for future action. Finally, EPA’s stat ement in the 2000 Regulatory Determination and EPA’s proposed rule are both contradictory to EPA’s prior position in Solite Corp. v. EPA [Footnote 26: 952 F.2d 473 (D.C. Cir. 1991).], as discussed more fully below.

A. The Bevill Amendment provides EPA Li mited and One

- Time Authority to Study and45

Determine the Appropriate Regulatory Scheme for CCRs

The idea for the substance of the Bevill Amendment came from EPA itself. When EPA first proposed RCRA Subtitle C regulations in 1978, it solicited comments on a flexible alternative regulatory scheme for large

- volume/low toxicity solid wastes, or “special wastes,” including CCRs. [Footnote 27: 43 Fed. Reg. 58,946, 59,015 (December 18, 1978).] By 1980, however, when the RCRA rules were promulgated, EPA had decide d the special waste concept was unnecessary. [Footnote 28: 45 Fed. Reg. 33,084 (May 19, 1980). ] Special waste generators sought help from Congress, and Congress enacted the Bevill Amendment in October 1980, just before the RCRA rules became effective. [Fo otnote 29: Pub. L. No. 96

- 482, codified at 42 U.S.C. §§ 6921(b)(3)(A), 6982(n) (study requirements for CCRs). The legislation is referred to as the Bevill Amendment because it was sponsored in the House of Representatives by Rep. Thomas Bevill of Alabama.]

For CCRs (and for the other “special wastes”), the Bevill Amendment required EPA to undertake a “detailed and comprehensive study” of the wastes and to prepare and submit a Report to Congress presenting the conclusions of the study. [Footnote 30: Id] EP A was supposed to complete the CCR Report by October 21, 1982.[Footnote 31: As EPA acknowledges in the preamble, it missed this deadline. EPA subsequently prepared two CCR studies, and two regulatory determinations, in compliance with court

- ordered deadlin es. In both cases, EPA determined that Subtitle C regulation was not warranted, and announced that it would promulgate national management standards for CCRs under RCRA Subtitle D. 75 Fed. Reg. at 35,137. However, EPA never proposed or adopted any Subtitle D standards.] Then, based on the study results, and after public meetings and opportunity to comment, EPA was to make a “regulatory determination,” deciding whether Subtitle C hazardous waste regulation of CCRs was warranted. Meanwhile, the Bevill Amendme nt provided a temporary exemption from RCRA Subtitle C regulation for CCRs, until at least six months after EPA completed the required study, report to congress and regulatory determination. [Footnote 32: 42 U.S.C. § 6921(b)(3)(A)(i).]

A common

- sense rea ding of these statutory provisions compels the conclusion that they describe

a one

- time study and regulatory decision making process. Congress ordered EPA to undertake a study and determine how to regulate “special wastes,” and it provided a temporary exem ption from RCRA requirements until these actions were complete. There is no hint in the statute that Congress intended for EPA to revisit Bevill determinations periodically, or ever, for that matter. The Bevill Amendment instead was a fix to what Congress adjudged to be regulatory overreaching on EPA’s part.

B. EPA Itself has interpreted the Bevill Amendment as a “One

- Time” Congressional Authority

In fact, it is not necessary to apply statutory construction principles, to parse the legislative history, or to guess what Congress meant when it adopted the Bevill Amendment. In the past, EPA has clearly and repeatedly interpreted the Bevill Amendment as a one

- time grant of authority. Before the Agency can take action on the proposed rule, it must, at a minim um, disclose this regulatory record and offer justification for departing from it.

In 1988, EPA proposed to limit the scope of the Bevill Amendment as it applied to “mineral46

processing wastes.” [Footnote 33: 53 Fed. Reg. 41,288 (October 20, 1988).] In th e preamble to a revised proposed rule, published in April 1989, EPA responded to comments that it should be prepared to undertake Bevill studies and make regulatory determinations on mineral processing wastes that might be generated in the future:

Both t he administrative record and congressional intent clearly indicate that the Bevill Amendment was intended to provide a temporary exclusion, pending further study, over a fixed time period. Congress directed EPA to conduct a single study of wastes generated by mineral mining and processing facilities, because of concern that existing wastes might not be readily amenable to Subtitle C controls and might pose relatively low hazard to human health and the environment. Moreover, contrary to some commenters’ asse rtions, the statutory language includes explicit time limits on the Bevill exclusion, which apply to the submission of the required Report to Congress and subsequent regulatory determination. [Footnote 34: 54 Fed. Reg. at 15,338.]

EPA reiterated its posi tion on this subject in the preamble to the final rule. [Footnote 35: 54 Fed. Reg. 36,592 (Sept. 1, 1989).] The statutory language applicable to CCRs is identical in all significant respects to the language governing the Bevill study of mineral processing wastes.

The final mineral processing rule

– including EPA’s position about the one

- time nature of its Bevill authority

– was challenged in Solite Corp. v. EPA. [Footnote 36: 952 F.2d 473 (D.C. Cir. 1991).] EPA continued to argue to the court that its Bev ill authority was limited to a one

- time study and determination of Bevill status:

This decision followed from EPA’s reading of congressional intent based on the statutory language and scheme of sections 3001(b)(3) and 8002(p) of RCRA, which establish a t emporary exclusion for a fixed period of time and which fail to expressly impose a continuing obligation to study new waste streams. EPA’s construction was also based on other indicia, such as the strict statutory time periods governing the mineral process ing waste exclusion ... in RCRA. [citations omitted]. From this evidence of congressional intent, EPA reasonably determined that Congress
authorized EPA to make a one

- time interpretation or snapshot of mineral processing wastes, rather than a continuing seri es of studies and regulatory determinations.... [Footnote 37: Respondent’s Brief, Solite v. EPA, at 68 (May 8, 1991).]

The Solite court agreed, concluding:

The statutory provision directing EPA to study Bevill wastes suggests by its terms that a one

time study is sufficient. ...

In any event, this court’s holding in [Environmental Defense Fund v. EPA, 852 F.2d 1316, (D.C. Cir. 1988)] secures EPA’s position that a one

- time determination is sufficient. There we interpreted the Bevill Amendment as an exclusio n specifically for “the category of wastes designated as ‘special wastes [] ... in EPA’s 1978 proposed hazardous waste regulations.” [citations omitted]. While we did not go so far as to foreclose Bevill status for a future waste that might satisfy a pre

- set criterion, we clearly enough rejected the theory that Congress intended the coverage of the Bevill exclusion to evolve with time. [Footnote 38: 953 F.2d at 491.]47

The most notable aspect of the history cited above is that EPA nowhere mentions it in the

p roposed rulemaking. Yet, it is inescapable that EPA’s current position is irreconcilable with its past interpretation of the statute. EPA does nothing in the proposed rule to come to terms with
these inconsistencies.

EPA

– in justification of its current proposal

– may not simply argue that the past interpretation was in a preamble, was at the most guidance, and does not bind the Agency. The regulatory scope of the mineral processing rule is based on what EPA maintained in the Solite litigation was
its ex pert legal interpretation of its responsibilities under the Bevill Amendment. EPA maintained the legal position in court and won. It will not do now for EPA to entirely ignore its past pronouncements on this issue, as if they never happened. [Footnote 39: See Williams Gas Processing

- Gulf Coast Co. v. Federal Energy Regulatory Commission, 475 F.3d 319, 326 (D.C. Cir. 2006) (noting that “[r]easoned decisionmaking necessarily requires consideration of relevant precedent” and “agency action must either be consi stent with prior action or offer a reasoned basis for its departure from precedent” (citations omitted); Mobile Oil Corp. v. Environmental Protection Agency, 871 F.2d 149 (D.C. Cir. 1989) (holding that EPA’s regulatory approach represented a change in agen cy policy, but that EPA acknowledged that change and cogently explained the reasons for it). ]

EPA also may not find justification in a narrow reading of the Solite court’s opinion. It is true that the court held only that EPA could decide only to conduc t a single Bevill study for mineral processing wastes. However, EPA argued much more than that in its submissions to the court: EPA took the position that Congress only gave it the authority to make Bevill determinations once. In dicta interspersed with it s holding, the court agreed, suggesting that EPA’s reading of
the Bevill Amendment as limited to a one

- time exercise was a reasonable one. [Footnote 40: 952 F.2d at 491.] EPA now has an obligation to explain these past pronouncements and to justify its dep arture from this interpretation of its Bevill Amendment authority.

C. Even if EPA Had Authority to Revisit Its Bevill Determination on CCRs, It Has Failed to Conduct the Required Bevill Study

Even if EPA had the authority it claims to revisit Bevill de terminations, it would have to do so in compliance with the terms of the Bevill Amendment. As already explained above, the first (and mandatory) step of the Bevill Amendment is to conduct a detailed and comprehensive study of the exempt wastes. EPA has not conducted the study, and cannot list CCRs as hazardous wastes until it complies with that requirement and the other requirements of the Bevill Amendment.

EPA does not address this failure, and neglects even to mention the study requirement as a prerequi site to any decision to revoke Bevill

- exempt status. But the requirement is clear, and stands in the way of EPA’s proposed CCR listing.

EPA’s proposed rule does not satisfy the Bevill study requirement. As explained above, RCRA requires a detailed and co mprehensive study, and provides a list of eight study factors that must be addressed. [Footnote 41: See Section I.V.A., above.] In the Proposed Rule, EPA discusses each of the eight Section 8002(n) study factors and evaluates them based on the data on whic h it48

made the May 2000 Regulatory Determination “as well as the most recent data available.” [Footnote 42: 75 Fed. Reg. at 35,151.] However, this analysis does not meet the statutory requirement to “conduct a detailed and comprehensive study and submit a r eport on the adverse effects on human health and the environment, if any, ... to the Committee on Environment and Public Works of the United States Senate and the Committee on Energy and Commerce of the United States House of Representatives.” [Footnote 43: 42 U.S.C. § 6982(n).] If EPA wishes to revise its analysis of the eight study factors with regard to whether to regulate CCWs under Subtitle C, it must comply with the statutory duty to prepare a revised Report to Congress.

EPA does acknowledge the study factors in the preamble (but not the requirement to conduct a new study), and notes that it will carefully consider all comments submitted in response to the proposed rule. [Footnote 44: 75 Fed. Reg. at 35,133.] At best, this amounts to no more than lip

s ervice to the study requirement. Asking for comment in a rulemaking process is not equivalent to the active undertaking of a “detailed and comprehensive study,” as the statute requires. Otherwise, the quality and completeness of EPA’s study would depend en tirely on the comments submitted by stakeholders. This passive approach is certainly not what Congress intended for EPA to do to satisfy the Bevill study requirement.

EPA also cannot claim that the ongoing research being conducted by EPA’s ORD satisfies the Bevill study requirement. First and foremost, the four ORD studies are not complete, as EPA acknowledges. [Footnote 45: Id. at 35,139.] EPA describes the ORD research as “ongoing.” [Footnote 46: Id] Furthermore, EPA notes that the research conducted to date has generated a substantial amount of data and that such data “can be useful as a reference for assessing additional CCR samples in the future.” [Footnote 47: Id] The database containing the full dataset is presented as a “Beta” version, and may be f urther developed. [Footnote 48: Id] Even if the studies were completed, they would not fulfill the Bevill study requirements EPA must meet before it reverses a Bevill determination because the reports produced to date do not address all of the study factor s required by statute.

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08244

- 2 

### Organization 1 

### : Edison Mission Energy, LLC 

### Commenter 1 : Basil G. Constantelos
Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.5 

### Comment Excerpt Text: A. EPA Must Satisfy Both The Bevill Amendment And Regulatory Standards For Subjecting A Solid Waste (Or Category Of Solid Wastes) To Subtitle C’s Requirements49

EPA suggests in the Proposed Rule that it is not proposing to regulate CCRs as hazardous waste because it is not going to call them hazardous, but rather is going to create a new categ ory of “Special Wastes” that will erase all of the stigma associated with a hazardous waste listing decision. This justification defies logic and is purely an exercise in semantics. It is common knowledge that the express purpose of RCRA Subtitle C is to r egulate hazardous waste, as evidenced by its title

– “Hazardous Waste Management.”[Footnote 7: See Title 42 (“The Public Health and Welfare”), Chapter 82 (“Solid Waste Disposal”), Subchapter III (“Hazardous Waste Management”).] Thus, regardless of the name assigned to a specific waste (or group of wastes), a decision to regulate such material under Subtitle C is predicated on an EPA determination that those wastes satisfy RCRA’s definition of hazardous waste [Footnote 8: 42 U.S.C. § 6921(b).]. EME submits, for the reasons set forth below, that EPA’s proposal has not satisfied this requirement. The Bevill Amendment factors supplement the RCRA hazardous waste criteria, and EPA must satisfy both standards before listing CCRs destined for disposal as a hazardous waste under Subtitle C. While the Proposed Rule briefly attempts to explain why CCRs as a group satisfy the requirements of 40 C.F.R. § 260.11 for subjecting a waste to RCRA Subtitle C,[Footnote 9: 75 Fed. Reg. at 35,166

- 73.] EPA devotes a large portion o f the preamble to explaining the Agency’s reconsideration of its prior Bevill determinations for CCRs, which suggests a belief by the Agency that the Bevill factors are somehow the only standard determinative of whether CCRs
should be listed under Subtitle C [Footnote 10: Id. at 35149

- 66 (discussion of the Agency’s Bevill determination). EPA dedicated approximately 18 pages to its discussion of the Bevill determination, but only 8 pages to its discussion of the criteria for listing CCRs as a “special

waste. ” Compare id. at 35,149

- 66 with id. at 35,166

- 73.]. To the extent it is the Agency’s conclusion that the Bevill Amendment supplants the criteria for regulating CCRs under Subtitle C, that belief is misplaced and contrary to RCRA and the applicable regulati ons. In order to be subject to the requirements of Subtitle C, a solid waste must satisfy the criteria for listing as a “hazardous waste” as that term is defined by the statute and regulations [Footnote 11: 42 U.S.C. § 6921, et seq.; 40 C.F.R. § 261.1]. Th e criteria for determining whether a solid waste is a hazardous waste include “toxicity, persistence, and degradability in nature, potential for accumulation in tissue, and other related factors such as flammability, corrosiveness, and other
hazardous char acteristics.”[Footnote 12: 42 U.S.C. § 6921(a); 40 C.F.R. § 260.11.]. If a solid waste is not a hazardous waste, then it can only be subject to Subtitle D’s requirements. Congress did not eliminate that requirement when it modified RCRA in 1980 with the Be vill
Amendment

— it supplemented that requirement with the Bevill factors. The Bevill Amendment revised Subtitle C to expressly prohibit the regulation of “fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated primarily f rom the combustion of coal or other fossil fuels”[Footnote 13: 42 U.S.C. § 6921(b)(3)(A) (these CCR wastes are not subject to regulation as a hazardous waste “until at least six months after the date of submission of the applicable study required to be con ducted under [section 8002(n)] . . . .”).] until after completion of a study by EPA considering the “adverse effects on human health and the environment, if any, of the disposal and utilization of fly ash waste, bottom ash waste, slag waste, flue gas emiss ion control waste, and other byproduct materials generated primarily from the combustion of coal or other fossil fuels.”[Footnote 14: Id. § 6982(n). This study must include an analysis of: “(1) the source and volumes of such material generated per year; (2 ) present disposal and utilization practices; (3) potential danger, if any, to human health and the environment from the disposal and reuse of such materials; (4) documented cases in which50

danger to human health or the environment from surface runoff or le achate has been proved; (5) alternatives to current disposal methods; (6) the costs of such alternatives: (7) the impact of those alternatives on the use of coal and other natural resources; and (8) the current and potential utilization of such materials.” Id.] However, that study alone is not sufficient to justify a CCR listing, but rather EPA must satisfy both the Bevill Amendment requirements and the Administrator must still make the applicable RCRA hazardous waste regulatory determinations

– i.e., do th e waste products at issue satisfy the criteria for identification and listing as hazardous

waste

— to subject those wastes to regulation as hazardous wastes under Subtitle C.[Footnote 15: Id. § 6921(b)(3)(A), (C) (“Not later than six months after the date of submission of the applicable study . . . the Administrator shall, after public hearings and opportunity for comment, either determine to promulgate regulations under this subtitle for each waste listed in subparagraph (A) of this paragraph or determine th at such regulations are unwarranted. The Administrator shall publish his determination, which shall be based on information developed or accumulated pursuant to such study, public hearings, and comment, in the Federal Register accompanied by an explanation and justification of the reasons for it.”). The statute also provides that if the Administrator decides to list CCRs as hazardous waste, the Administrator may modify some of the requirements to account for the special characteristics of
these wastes. Unde r 42 U.S.C. § 6924(x) if the Administrator determines to regulate CCRs under Subtitle C, “the Administrator is authorized to modify the requirements of subsections (c), (d), (e), (f), (g), (o) and (u) and section 3005(j), in the case of landfills or surfac e impoundments receiving such solid waste, to take into account the special characteristics of such wastes, the practical difficulties associated with implementation of such requirements, and site

- specific characteristics, including but not limited to the climate, geology, hydrology and soil chemistry at the site, so long as such modified requirements assure protection of human health and the environment.” Significantly, these special provisions governing CCRs described in notes 13 to 15 and accompanying te xt are in addition to

— not instead of

— the criteria that must be met to list a substance as hazardous waste.} As Congress explained at the time, the Bevill amendment was motivated by a concern “that EPA may be hastily classifying wastes as hazardous and impo sing burdensome costs on businesses without proper or sufficient data to support their classification.”[Footnote 16: 126 Cong. Rec. 3361, 3346 (Feb. 20, 1980) (Rep. Traxler

- MI).] Congress was concerned that a hasty decision “to treat these relatively har mless byproducts as special hazardous wastes subject to stringent regulation will only hasten the decline of the coal industry” in the U.S.[Footnote 17: Id. at 3361 (Rep. Bevill

- AL).] Motivated by the concerns about maintaining coal as the primary domest ic source of energy, reducing reliance on foreign energy sources, and avoiding unreasonable and burdensome regulatory requirements, Congress imposed the Bevill Amendment’s study requirements on EPA to ensure that the Agency adequately studied CCRs prior to making a determination as to whether they were subject to Subtitle C’s requirements. As Rep. Staggers (WV) explained “[t]his amendment continues to subject specified byproducts of fossil fuel combustion, coal mining wastes and other so

- called special wast es to existing regulatory programs under presently applicable Federal and State laws, but would preclude, until after completion of the required study and rulemaking, any EPA regulation of these wastes under [S]ubtitle C of RCRA.”[Footnote 18: Id. at 3365 (Rep. Staggers

- WV).] Put simply, the Bevill Amendment was designed to force EPA to slow down and take more deliberate action based on sufficient data to support any regulatory action with respect to CCR51

materials; it did not eliminate the fundamental RCR A requirement that EPA identify those wastes that are hazardous based on specific characteristics before subjecting them to Subtitle C. It does not give EPA special authority to circumvent Subtitle C’s requirements through the creation of a new category of “special waste.” As EPA admits “solid wastes may [only] become subject to regulation under subtitle C of RCRA in one of two ways...[;] a waste may be subject to regulation if it exhibits certain hazardous properties..., or if EPA has specifically listed the

w aste as hazardous.”[Footnote 19: 75 Fed. Reg. at 35,135 (internal citations omitted).] Thus, just because the Agency wants to call CCRs a “special waste”, it still has to determine whether or not they are hazardous and address the Bevill factors in order t o subject them to regulation under Subtitle C; as explained in the subsections below, the Agency has not satisfied that requirement substantively or legally

.

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill de termination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08244

- 3 

### Organization 1 

### : Edison Mission Energy, LLC 

### Commenter 1 : Basil G. Constantelos Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 11.1 

### Comment Excerpt Text: B. EPA’s Proposal To List CCRs As A Single Category Of Waste Is Inconsistent With The Statute, Regulation And EPA’s Past Practice Because Individual CCRs Covered Under The Rule Are Not “Typically or Frequently” Hazardous The standard for listing a solid waste as hazardous under Subtitle C is clear

– and EPA’s proposal to list CCRs as a single category of waste does not meet the standard. Congress required EPA to develop criteria for listing hazardo us waste “taking into account toxicity, persistence, and degradability in nature, potential for accumulation in tissue, and other related factors such as flammability, corrosiveness, and other hazardous characteristics.”[Footnote 20: 42 U.S.C. § 6921(a). C ongress defined “hazardous waste” as “a solid waste, or combination of solid wastes, which because of its quantity, concentration, or 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, illness; 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.” Id. At § 6903(5).] EPA promulgated regulations requiring that before a solid waste could be subject to Subtitle C requirements (i.e., listed as hazardous), EPA must first determine whether the waste: 1. Exhibits a hazardous characteristic;
2. Has been found t o be fatal to humans at low doses (designated as Acute Hazardous Waste); or 3. Contains a toxic constituent (such constituents are listed in the regulations) and is capable of52

“posing a substantial present or potential hazard to human health or the environ ment when improperly treated, stored, transported, or disposed of, or otherwise managed.”[Footnote 21: 40 C.F.R. § 261.11(a)(1)

- (3) (emphasis added).] It is undisputed that the CCRs at issue here do not trigger either of the first two categories above.
Wit h respect to the third, EPA may only list classes or types of solid waste as hazardous if the Agency “has reason to believe that individual wastes, within the class or type of waste, typically or frequently are hazardous.”[Footnote 22: Id. § 261.11(b) (emp hasis added).] In promulgating the listing criteria, EPA explained that it proposed this provision to account for situations where “[a] class of wastes may exhibit sufficient uniformity of hazard to warrant listing on a class basis.”[Footnote 23: 45 Fed. R eg. 33,084, 33,114 (May 19, 1980) (emphasis added).] However, this does not mean that EPA may group solid wastes as it pleases without standards. On the contrary, EPA stated that “[t]he Agency of course, must demonstrate that sufficient uniformity
exists o r is likely to exist.”[Footnote 24: Id.] Thus, EPA has the burden of demonstrating that a proposed class or type of waste is both “sufficiently uniform” and “typically or frequently”
hazardous. The D.C. Circuit has evaluated numerous challenges to EPA cla ss listings and upheld listings where EPA performed risk analyses “specific to the waste streams” and “identified constituents of concern in each waste stream.”[Footnote 25: See Dithiocarbamate Task Force v. EPA, 98 F.3d 1394, 1402 (D.C. Cir. 1996) (emphas is added).] Thus, where EPA has done individual analyses and the data permitted it to draw inferences regarding common characteristics of a specific class of waste, EPA has satisfied its burden of demonstrating that the class is “typically or frequently”
h azardous. However, courts have vacated the inclusion of specific chemicals or waste streams in class listings where “EPA offer[ed] no reason for an extension of regulation across chemicals that are distinguishable on a key variable of listing” and “evidenc e relating to that chemical exonerates it from flaws leading the [A]gency to classify supposedly kindred chemicals as a group.”[Footnote 26: See id. at 1405.] EPA has failed to make the requisite demonstration here. The Proposed Rule would include waste st reams in the CCR class that are so disparate that there is no way that EPA can group them based on common characteristics and conclude that they “typically or frequently” are hazardous. As such, EPA’s attempt to do so is contrary to law and is
also inconsi stent with EPA guidance and prior practice. For example, EPA guidance provides that “[b]efore developing a hazardous waste listing,... [the Agency must] thoroughly study a particular waste stream and the threat it can pose to human
health and the environment . If the waste poses enough of a threat...[EPA should] include[] a precise description of that waste on one of the hazardous waste lists in the regulations.”[Footnote 27: EPA, RCRA Training Module, Introduction to Hazardous Waste Identification (40 CFR
Parts 261), 4 (Sept. 2005).] A hazardous waste listing is supposed to be “a narrative description of a specific type of waste that EPA considers dangerous enough to warrant regulation”

– i.e., one that describes with some precision “wastes from various industri al processes, wastes from specific sectors of industry, or wastes in the form of specific chemical formulations.”[Footnote 28: Id.] EPA recognized that a thorough study of specific waste streams was important because overly broad listing descriptions riske d subjecting non

- hazardous portions of waste streams from an industry or facility to Subtitle C requirements unnecessarily [Footnote 29: See id.]. Unfortunately, as discussed in Section III.C below, EPA disregarded its own guidance in the Proposed Rule by proposing to capture all of the disparate types of CCRs within one overly broad category. EPA’s proposal is contrary to its past practice and contrary to its prior applications of the “typically or frequently” standard.53

For example, in the early 1990s, EPA considered whether to regulate used oil as hazardous waste under Subtitle C, and contemplated three options (analogous to what it has proposed here), regulating: (1) all used oil as hazardous, (2) only the categories of used oil that were “typically or
fr equently” hazardous, or (3) not to regulate used oil as hazardous. In that context, EPA proposed that “typically or frequently” should be defined as “when 50 percent of [sic] more of the samples in a used oil category exceed the levels of concern.”[Footnot e 30: 56 Fed. Reg. 48,000, 48,020 (Sept. 23, 1991)] Using both TCLP and compositional data, EPA stated that: if greater than 50 percent of the samples in a given used oil category were found to exhibit the TC and, based on compositional analysis, exceed th e health

- based number for TC constituents or PAHs by a factor of greater than 1,000, the used oil category is deemed to be “typically and frequently” hazardous [Footnote 31: Id.]. While EPA never promulgated this definition because commenters overwhelming ly supported the option of not listing used oil as a hazardous waste,[Footnote 32: 57 Fed. Reg. 41,566, 41,571 (Sept. 10, 1992)] the definition is instructive and is entirely consistent with EPA’s past listing decisions [Footnote 33: See notes 39 to 45 and accompanying text.]. As explained below, applied here, EPA’s proposed definition of “typically and frequently” would have clearly indicated that the CCRs covered by the Proposed Rule do not satisfy the criteria for listing under Subtitle C because EPA’s o wn data show that CCR wastes rarely exceeded hazardous waste characteristic levels. For example, EPA had previously concluded that for co

- managed CCR wastes only 2% (1 of 51 samples) exceeded the applicable RCRA TC threshold and for individual CCRs, 0% of the coal bottom ash, 2% of the coal fly ash, 3% of the FGD materials, and 7% of the coal boiler slag samples exceeded the applicable TC.[Footnote 34: 65 Fed. Reg. at 32,222.] See Section III.D.1.a.[Footnote 35: EME submits that the metals content of the FG D materials is driven by fly ash and exhaust gas metals that settle in the scrubbers while the reaction with the SO2 is occurring.] EPA’s analysis for landfills was also based on timeframes that are not consistent with the typical or frequent standard, sin ce the modeled constituent concentrations did not reach their peak levels for thousands of years [Footnote 36: See the discussion below at p. 36.] And while the modeling shows peak concentrations for surface impoundments being reached on a shorter
timefram e, those concentrations are exaggerated by EPA’s use of atypical data, with EPA itself calling into question the viability of the two highest concentration estimates that drive its modeled estimates [Footnote 37: See the discussion below at p. 46

- 48.].
Sim ilarly, EPA’s obligation to demonstrate sufficient uniformity when proposing a class listing is highlighted by its prior listing decisions. For example, the uniform presence of the toxic constituent in the waste stream has been a key consideration in wheth er EPA may regulate a waste under Subtitle C. EPA’s analysis and listing decision for Hazardous Waste No. F006 [Footnote 38: 40 C.F.R. § 261.31(a) (“Wastewater treatment sludges from electroplating operations except from the following processes: (1) Sulfur ic acid anodizing of aluminum; (2) tin plating on carbon steel; (3) zinc plating (segregated basis) on carbon steel; (4) aluminum or zinc

aluminum plating on carbon steel; (5) cleaning/stripping associated with tin, zinc and aluminum plating on carbon stee l; and (6) chemical etching and milling of aluminum.”)] is a prime example. EPA first proposed a broad category for “wastewater treatment sludges from electroplating operations,” but later revised the listing to exclude six different processes. EPA
made th is revision because it agreed with commenters that the listing “was overbroad, including a number of processes which would not generate a hazardous waste because the hazardous waste
constituents of concern

-- chromium, cadmium, nickel and cyanides

-- . . . would not be expected to be present in the sludges.”[Footnote 39: 45 Fed. Reg. 74,884, 74,887 (Nov. 12, 1980).]54

The creation of Hazardous Waste No. F019 also highlights EPA’s emphasis on the uniform presence of toxic constituents as a basis for listing a waste as hazardous. In its Nov. 12, 1980 interim final rule, EPA created F019 from a subset process that EPA had originally included in a broad listing for Hazardous Waste No. F006. While F006 was listed because of four constituents of concern, EPA conclud ed that “these [F019] sludges will not contain cadmium and nickel, two of the constituents of concern in other listed electroplating wastewater treatment sludges. We therefore are adopting in final form a separate listing designation for wastewater treatme nt sludges from the chemical conversion coating of aluminum (Hazardous Waste No. F019). . . .”[Footnote 40: Id.] Therefore, rather than grouping this plating process with the other plating processes described in F006, EPA created a new listing to ensure un iformity of the class, in recognition that this process resulted in sludge that only contained two of the four constituents of concern covered in F006. EPA followed the same approach of requiring sufficient uniformity in the following additional listing de cisions:

- In 1998, EPA decided not to list as hazardous the wastes from the use of 14 chemicals as solvents [Footnote 41: 63 Fed. Reg. 64,372, 64,372 (Nov. 19, 1998).]. As part of its analysis, EPA rejected the suggestion that it should have broadly consid ered “solvent wastes” rather than limiting the scope of its analysis to the definition of solvents subject to the listing. EPA stated: Given the ubiquity of solvents, the great variety of uses and the huge differences in the composition of the waste stream s, EPA could not gather the evidence to list “solvent wastes” as a general category. Under the Agency’s regulations at 40 CFR 261.11(b), wastes may be listed as a category if they are “typically or frequently” hazardous. EPA could make no such findings for “solvent” wastes in general and, therefore, has reasonably focused its investigation and listing decision [Footnote 42: Id. at 64,374.].

- EPA made a final determination not to list used oil destined for disposal as a hazardous waste because EPA found “tha t all used oils do not typically and frequently meet the technical criteria for listing a waste as hazardous waste.”[Footnote 43: 57 Fed. Reg. 21,524, 21,524 (May 20, 1992).] EPA’s Notice of Data Availability related to the listing determination for used o il noted that “EPA now recognizes the variability of constituent concentrations between different used oil streams and now believes that it may not be appropriate to list all used oils as a hazardous waste.”[Footnote 44: 56 Fed. Reg. at 48,019 (Sept. 23, 1 991). EME would also note that used oil can be considered on spec as a boiler fuel, but not classified as hazardous, even if it contains concentrations of cadmium 2.0 ppm (RCRA TC 1.0 ppm), chromium 10.0 ppm (RCRA TC 5.0 ppm), and lead 100 ppm (RCRA TC 5.0 ppm) above the applicable TC thresholds, making EPA’s Subtitle C proposal with respect to CCRs even more puzzling.}

- Similarly, where EPA could not demonstrate uniformity, it chose not to expand a class listing. In declining to include foundry electric f urnace emission control dusts and sludges in its listing of wastes from primary steel production as K061 wastes, EPA focused on the uniform composition of the waste to determine the grouping in a class and stated “we intended only to include wastes from pr imary steel production. . . . We are uncertain whether foundry electric furnace emission control dusts and sludges are sufficiently similar in composition to warrant inclusion in the same listing, so we are evaluating the potential hazardousness of foundry industry wastes in separate actions.”[Footnote 45: 45 Fed. Reg. at 74,887 (emphasis added).]

As discussed below and like the examples described above, the variability of constituent concentrations between different CCR waste streams suggests that it is inappropriate to find that55

all CCRs (individually, let alone as a class) meet the constituent concentration criteria for listing
as a hazardous waste

.

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Be vill determination , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.



### Co mment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08244

- 5 

### Organization 1 

### : Edison Mission Energy, LLC 

### Commenter 1 : Basil G. Constantelos Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 2.1.4 

### Comment Excerpt Text: D. EPA’s Subtitle C Proposal Is Premised On A Dramatic Overstatement Of The Risks Posed By
CCRs In addition to its unjustified lumping of CCR materials into one class, this Section explains why,
based on t he data presented in the record, EPA has not satisfied its burden under RCRA of establishing that the CCRs (whether considered in the aggregate or individually) “typically or frequently are hazardous.”[Footnote 61: 40 C.F.R. § 261.11(b) (emphasis added).] EPA’s suggestion that these materials pose a substantial risk is premised on: (1) a risk assessment that dramatically overstates the real risks posed by CCRs, and (2) a limited number of damage cases that EPA claims show the dangers posed by these material s (see Section III.D.2 below), even though those damage cases are not relevant to the risks posed by these materials based on their
inherent characteristics. 1. To Support Its Determination That Subtitle C Applies, EPA’s Recent CCR Risk Assessment
Relies O n Overly Conservative Assumptions That Are Plainly Inconsistent With Prior
Assessments EPA justifies its proposal to regulate CCRs under Subtitle C based in large part on the results of its 2003 risk assessment, which it alleges supports a determination th at these materials should be subject to the hazardous waste generation, storage and disposal requirements of Subtitle C. EPA’s new assessment is problematic because (i) it represents a 180

- degree reversal from prior assessments prepared by the Agency looki ng at CCR disposal issues, and (ii) it relies on unrealistic, overly conservative assumptions and modeling to support its risk conclusions (i.e. scenarios that are atypical and infrequent, to the extent that they would ever arise in the real world). As suc h, the administrative record developed by EPA does not support its proposal to regulate CCRs under Subtitle C.
a. Prior CCR Assessments In October, 1980, Congress amended RCRA, adding a provision, known as the Bevill Amendment, to temporarily exclude large volume wastes from fossil fuel combustion from regulation under Subtitle C unless/until EPA conducted a study that considered the following eight factors as a prerequisite to taking any such regulatory action:[Footnote 62: See Section56

III.A above for a mo re complete discussion of the legal implications of the Bevill amendment.] 1. Sources and volumes of such materials generated per year; 2. Present disposal and utilization practices; 3. Potential danger, if any, to human health and the environment from the disposal and reuse of such materials; 4. Documented cases in which danger to human health or the environment from surface runoff or leachate has been proven; 5. Alternatives to current disposal methods; 6. Costs of such alternatives; 7. Impact of those al ternatives on the use of coal and other natural resources; and 8. Current and potential utilization of such materials. Congress gave EPA six months to complete the study required by the Bevill Amendment. EPA issued an initial temporary exclusion, pending a report to Congress that was eventually issued in 1988. No further action was taken until a lawsuit was filed to compel the Agency to make a formal regulatory determination. EPA entered into a consent decree with all parties to that litigation that provide d a schedule for making regulatory determinations on two separate categories of wastes. EPA would first make a determination regarding fly ash, bottom ash, boiler slag, and FGD wastes, by August 2, 1993. EPA agreed to make a determination on all other

wast es under the Bevill Amendment by April 1, 1998, although that deadline was subsequently extended [Footnote 63: EPA presents the full chronology of its prior regulatory actions with respect to CCRs in Appenix A of its Regulatory Risk Assessment, including a complete history of the various determinations. See EPA, Appendix for Regulatory Impact Analysis, 4

- 6 (April 30, 2010).]. In 1993, EPA issued its first official regulatory determination that regulation of CCR materials under Subtitle C was not appropriate for fly ash, bottom ash, FGD wastes, and boiler slag [Footnote 64: 58 Fed. Reg. 42,466

- 67.]. EPA based this determination on its conclusion that (i) the materials posed low risks, (ii) there were sufficient state and federal regulatory controls,[Footnote 65: EPA reviewed regulations in the 17 states that represented approximately 70 percent of coal ash in the U.S., and found that all but one required operating permits, 12 had mandatory liner and groundwater monitoring requirements, and three states had aut hority to impose liner requirements on a case

- by

- case basis. 14 regulated CCRs as solid wastes, two had requirements based on waste characteristics, and one exempted CCRs completely. As a result, EPA found that “State regulatory programs are generally adeq uate.” Id. At 42,476.] and (iii) the risks from the wastes were dictated by site

- specific characteristics at disposal sites, such as groundwater flow and soil properties, rather than uniform characteristics inherent to the residuals themselves, such that r egulating CCR materials as hazardous wastes was neither scientifically sound nor justified as a matter of policy [Footnote 66: “Since [CCR] sites vary widely in terms of topographical, geological, climatological, and hydrological characteristics (e.g., dep th to groundwater, annual rainfall, distance to drinking water sources, soil type) and the wastes' potential to leach into the groundwater and travel to exposure points is linked to such factors, it is more appropriate for individual States to have the fle xibility necessary to tailor specific controls to the site or region specific risks posed by these wastes.” Id. at 42,477]. The Agency noted that although there were a few groundwater samples which exceeded drinking water standards, they would not likely l ead to any human exposures at that level due to dispersion in the groundwater and a lack of drinking water sources downstream of coal plants or disposal sites [Footnote 67: Id. at 42,475.]. In addition, the agency estimated that the cost to industry of lis ting under subtitle C57

could increase from $800 million annually under the existing disposal framework to between $3.7 and $5 billion [Footnote 68: Id. at 42,467

- 68.]. At the time, the Agency did not take a position on regulation under Subtitle D, but when it was presented with the suggestion that CCR landfills and impoundments be regulated similarly to MSW landfills (40 CFR part 258), EPA responded that: [w]hile the Agency believes that design and operating requirements similar to part 258 may be appropria te for some...[CCR] waste management units, the risks posed by...[CCR] waste management are site

- specific. Although groundwater contamination has occurred at certain coal combustion waste sites, contamination has been due to a limited number of constituents, w hich are likely to attenuate and dilute to safe levels before reaching an exposure point. This is in contrast to municipal solid waste landfills that are subject to 40 CFR part 258. The leachate at these sites often contains elevated levels of a wide range of toxic pollutants, and numerous damages have been observed. Therefore, the Agency believes that the level of protection provided by the part 258 criteria may not need to be universally applied to all...[CCR] waste management units. It is therefore appropr iate to allow the States to retain the flexibility to tailor requirements to site

- specific or regional factors rather than establish broad Federal minimum requirements. It should be noted that many States have adopted regulatory requirements for...[CCR] wast e management units comparable to the part 258 criteria. EPA will consider these wastes as part of the Agency’s ongoing assessment of industrial non

- hazardous wastes under RCRA Subtitle D [Footnote 69: Id. at 42481 (emphasis added).]. EPA published its next risk assessment, for combined wastes and other non

- utility fossil fuel wastes, in 1998 in draft form. Based on the analysis in the 1998 draft risk assessment, EPA issued a report to Congress recommending against Subtitle C regulation, with the possible

ex ception of the agricultural use of CCRs [Footnote 70: EPA, Report to Congress Wastes from
the Combustion of Fossil Fuels Volume 1

– Executive Summary, 3

- 5 (March 1999).]. In the 1998 draft risk assessment and the associated report to Congress, EPA conclud ed that risks were below the toxic and cancer risk levels of concern, with only arsenic generating cancer risks in EPA’s Monte Carlo model of greater than 1x10

- 6, ranging from 4x10

- 5 to 2x10

- 5 [Footnote 71:
Id. at 3

- 2

- 3

- 3 (March 1999).]. However, EPA rec eived numerous technical comments on the groundwater transport model, EPACMTP, that it was unable to address in time to meet the consent decree timeline for releasing its final regulatory determination on the remaining waste categories. As a result EPA did not base its 2000 determination on the results of the EPACMTP model, for fear that it was inaccurate. EPA concluded that its 1998 leachate modeling (based on the EPACMTP model) overestimated generation and concentrations over time, in part because it was based on a small sample size that gave an overly strong weight to a single facility’s worst

- case observation, and thus may not have accurately reflected actual leachate conditions [Footnote 72: EPA, Ground

- Water Pathway Human Health Risk Assessment, p. 8

- 2 1998 (Revised Draft Final).]. Therefore, EPA instead relied on surveys of hazardous constituents in CCRs, noting that samples of CCR wastes rarely
exceeded hazardous waste characteristic levels: Fossil fuel wastes infrequently exceed the hazardous waste c haracteristic. For comanaged wastes, 2% (1 of 51 samples) exceeded the characteristic level. For individual wastes streams, 0% of the coal bottom ash, 2% of the coal fly ash, 3% of the coal flue gas desulfurization, and 7% of the coal boiler slag samples t hat were tested exceeded the characteristic level [Footnote 73: 65 Fed. Reg. at 32,222.]. At the time, the only concern expressed by the Agency related to the potential for the leaching of58

arsenic out of the CCR materials. However, in 1993 EPA found that i mprovements in state and federal regulation would likely address the outstanding concerns: Nonetheless, given most of the states’ current regulatory capabilities and the evidence that basic controls are increasingly being put in place by the states and fac ilities (see RCRA section 8002(n), which directs EPA to consider actions of state and other federal agencies with a view to avoiding duplication of effort), EPA believes that subtitle D controls will provide sufficient clarity and incentive for states to c lose the remaining gaps in coverage, and for facilities to ensure that their wastes are managed properly [Footnote 74: Id. at 32,217.]. In addition to the preceding considerations, EPA based its 2000 decision, in part, on a desire to
not reduce the benefi cial reuse of CCRs, recognizing that a Subtitle C listing had the potential to negatively impact such use: Normally, concerns about stigma are not a deciding factor in EPA’s decisions under RCRA, given the central concern under the statute for protection o f human health and the environment. However, given our conclusion that the subtitle D approach here should be fully effective in protecting human health and the environment, and given the large and salutary role that beneficial reuse plays for this waste, concern over stigma is a factor supporting our decision today that [S]ubtitle C regulation is unwarranted in light of our decision to pursue a [S]ubtitle D approach [Footnote 75: Id.]. In sum, EPA’s prior evaluations of the hazards posed by CCR materials c learly demonstrate that Agency had concluded that these materials are not “typically or frequently” hazardous. Yet, EPA dismisses these prior determinations here without sufficient justification why these materials suddenly present a hazard to human health or the environment

.

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed pr ocess of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08246

- 6 

### Organization 1 

### : Stinson Morrison Hecker LLP on behalf of Kansas City Board of Public
Utilities 

### Commenter 1 : Parthenia B. Evans and Dennis Lane Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.2.2 

### Comment Excerpt Text:
Factors One and Two S how Improvement in Present Disposal and Utilization Practices Despite Increased CCR Volumes The first two factors, amount and disposal of CCRs, show a decline in the proportionate share of CCRs being placed in surface impoundments with a markedly greater proportion being placed in landfills or being beneficially used. EPA’s estimates of CCRs generated by coal

- fired electric generating plants highlight the improvements in CCR disposal or uses in 2008 compared to those
in 1995: "59

[See original comment for t able]

75 FR at 35151/1. [Footnote 2: EPA’s numbers are confusing. On one hand, the Notice states
that in the “mid

- 1990s” between “62 and 71 million tons of CCRs were generated by coal

- fired electric power plants.” 75 FR at 35151/1. On the other hand, the Notice states that in 1995, 26.2 million tons were landfilled, 53.2 million tons were disposed of into surface impoundments, another 26.2 million tons were beneficially used, and 9 million tons were placed in mines, id

., which amounts to a total of 114.6 m illion tons. That total is approximately 42 million tons more than the maximum of 71 million tons EPA estimated was generated yearly by electric power plants in the mid

- 1990s. The numbers in the above table were calculated by multiplying the 1995 disposal and uses percentages ( id .) by 71 million tons.]Even though the total amount of electric plant CCRs increased by over 90% between the two periods, the amount placed in surface impoundment declined by a little more than 10%, while the amounts going into land fills or being beneficially used nearly tripled. See 75 FR at 35156/2 (noting “significant increase” in beneficial use). The trend shows a lower health risk under existing regulation than was presented with the 2000 Determination, and thus supports continuation of the Bevill exemption for CCRs.

Response: The Agency acknowledges and appr eciates this comment. In the final rule, the Agency provides a revised description of these generation and usage rates (see Unit I Executive Summary and Unit XII of today’s preamble discussion. The commenter is referred to the Regulatory Impact Section of today’s rule as well as the Regulatory Impact Analysis supporting

this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08248

- 1 

### Organization 1 

### : Institute for Policy I ntegrity 

### Commenter 1 : Jason A. Schwartz Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.6 

### Comment Excerpt Text: I. EPA Should Consider Costs and Benefits when Determining Whether to Regulate CCRs under
Subtitle C

RCRA clearly gives EPA discretion to determine whether regulation of CCRs under Subtitle C is “unwarranted.” Given Executive Order 12,866, this determina tion should include prudent use of

cost

- benefit analysis. The Bevill Regulatory Determinations should be reversed if the net societal benefits from regulation under Subtitle C are higher than other regulatory options.

RCRA Gives EPA Substantial Discretio n to Regulate CCRs under Subtitle C

The statutory authority to regulate CCRs under Subtitle C of RCRA is given by subsection 3001(b)(3)(C):60

[T]he Administrator shall, after public hearings and opportunity for comment, either determine to promulgate reg ulations under [Subtitle C] for each waste listed in subparagraph (A) [including CCRs] of this paragraph or determine that such regulations are unwarranted. The Administrator shall publish his determination, which shall be based on information developed or accumulated pursuant to such study, public hearings, and comment, in the Federal Register accompanied by an explanation and justification of the reasons for it.

This determination is known as the “Bevill Regulatory Determination.” The relevant informati on that the Administrator must use includes a study mandated by subsection 8002(n):

The Administrator shall conduct a detailed and comprehensive study and submit a report on the adverse effects on human health and the environment, if any, of the disposal and utilization of [CCRs]. Such study shall include an analysis of

—

(1) the source and volumes of such material generated per year; (2) present disposal and utilization practices; (3) potential danger, if any, to human health and the environment from the disposal and reuse of such materials; (4) documented cases in which danger to human health or the environment from surface runoff or leachate has been proved; (5) alternatives to current disposal methods; (6) the cost of such alternatives; (7) the impact of those alternatives on the use of coal and other natural resources; and (8) the current and potential utilization of such materials.

In furtherance of this study, the Administrator shall, as he deems appropriate, review studies and
other action s of other Federal and State agencies concerning such material and invite participation by other concerned parties, including industry and other Federal and State agencies, with a view toward avoiding duplication of effort....

These two subsections are t he only statutory guidance that EPA is given in making the Bevill Regulatory Determination. [Footnote 1: It should be noted that, for example, there is no requirement that CCRs meet the statutory or regulatory definitions of “hazardous waste.” The
directiv e in subsection 8002(n) of the Resource Conservations and Recovery Act to submit a study on the “the adverse effects on human health and the environment” bears some relation to part of the statutory definition of “hazardous waste” in subsection 1004(5) (“a solid waste, or combination of solid wastes, which because of its quantity, concentration, or 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, illness; 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.”). However, this merely
confirms that these statutory provisions share the goal of protecting the environment and human health. 2 Entergy Corp. v. Riverkeeper, Inc., 129 S.Ct. 1498, 1509 (2009).]

Recently, in Entergy v. Riverkeeper , the Supreme Court affirmed that just because a statute does61

not re quire analysis of costs or benefits does not necessarily mean an agency cannot perform

cost

- benefit analysis. [Footnote 2: Entergy Corp. v. Riverkeeper, Inc., 129 S.Ct. 1498, 1509 (2009).] Entergy more generally supports the proposition that broad statutor y language allows EPA to weigh the social costs and benefits of regulation unless doing so is directly contrary to
the statute.

In this case, the broad statutory mandate is contained in subsection 3001(b)(3)(C). EPA need only determine whether or not Sub title C regulations for CCRs would be “unwarranted.” While this determination must be based on all the information accumulated in the course of the required study, public hearings, and public comments, Congress mandated several substantive areas of
conside ration in subsection 8002(n). These areas include environmental damage and adverse human health effects [Footnote 3: Resource Conservation and Recovery Act §§ 8002(n), (n)(3), 42 U.S.C. § 6982 (1976) [hereinafter RCRA].] and the cost of alternatives to cur rent disposal methods. [Footnote 4: Id. at §§ 8002(n)(5)

- (6).] These two factors encompass the health and environmental benefits of proposed regulations as well as the costs of the alternative disposals that would be mandated by the potential regulations. The other criteria are all areas that would need to be analyzed in any reasonable cost

- benefit analysis.[Footnote 5: Id. at §§ 8002(n)(1), (2) and (8) are all relevant to designing a baseline for a cost

- benefit analysis. RCRA § 8002(n)(4) is
relevant to de termining the costs in the baseline. RCRA § 8002(n)(7) contains ancillary costs and benefits of the rule.] As a result, EPA would be allowed to base its determination under subsection 3001(b)(3)(C) on a prudent cost

- benefit analysis.

In the past, EPA has not explicitly interpreted these sections of RCRA in this manner. [Footnote 6: For example, the 1993 Bevill Regulatory Determination declined to regulate CCRs from coal

fired electric utilities under Subtitle C because of "limited risks. . . and the exist ence of generally adequate State and Federal regulatory programs." 58 Fed. Reg. 42,466. Of course, this could be reformulated to be a claim about the net benefits of Subtitle C regulation.] But under the Supreme Court doctrine established by Chevron v. NRD C , courts will uphold any reasonable agency interpretation of an ambiguous term, regardless of whether it is the “best” or “most reasonable” interpretation. [Footnote 7: Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843

- 844 (1984).] So long as the reinterpretation is neither arbitrary nor capricious, it is perfectly acceptable for EPA to issue another reasonable interpretation of the relevant sections of RCRA. [Footnote 8: See Nat’l Cable & Telecomm. Assoc. v. Brand X Internet
Servs. , 545 U.S. 967 (2005) (explaining that Chevron review applies to agency changes of legal interpretations, quoting Chevron, 467 U.S. at 865

- 66); id. at 981

- 82 (Rehnquist, J., concurrent in part, dissent in part) (explaining that changes in administration ar e legitimate grounds for changing agency interpretations).]

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of

t he preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08261

- 2 

### Organization 1 

### : Black Warrior Riverkeeper, Inc.62



### Commenter 1 : Eva Dillard Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.1 

### Comment Excerpt Text: 1.CCRs Are Hazardous Waste Within the Meaning of RCRA.

In enac ting RCRA, Congress sent “a clear and unambiguous message to the regulated community and the Environmental Protection Agency: reliance on land disposal of hazardous waste has resulted in an unacceptable risk to human health and the environment.” See 1 H.R. Conf. Rep. 98

- 1133 p. 3. As a result, Congress observed “[l]and disposal should be used only as a last resort and only under conditions which are fully protective of human health and the environment.” Id.

The dangers to human health and the environment resulting from exposure to CCRs are indisputable and well

- documented. As studies have progressed, not only risks but actual damages have been proven in numerous cases, representing a variety of situations.8 While Congress may
not have understood that CCRs were hazardous when RCRA was enacted, there is absolutely no question today that these hazards exist; moreover, they can no longer be ignored. EPA’s own data, not to mention the data obtained from various other scientific studies, establishes that coal
ash poses a substantial present and potential threat to human health and the environment.

While RCRA does not include a statutory definition of “hazardous waste,” Congress authorized EPA to determine the criteria and characteristics for identifying a partic ular waste as “hazardous.”9 EPA regulations, in turn, provide that a waste is “hazardous” if it exhibits any one of four characteristics of hazardous waste, one of which is toxicity.10 Moreover, EPA is required to list a solid waste as “hazardous” upon determining that the waste meets one of the
four characteristics.

Response: T he Agency acknowledges and appreciates this comment. The commenter is also referred to the preamble discussion in Unit IV of the rule relating to the Bevill determination, as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill det ermination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08270

- 4 

### Organization 1 

### : Cliffs Natural Resources Inc. (Cliffs) 

### Commenter 1 : David Z. Skolasinski Commenter Type: Other Company
Classification: Substantive Comment Category:63

Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 2.1.4 3.1.2 

### Comment Excerpt Text: EPA's 1993 And 2000 Bevill Determinations Regarding CCRs

On August 9, 1993 , EPA published is Regulatory Determination for the first category of CCR wastes (58 Fed. Reg. 42,466) and determined that regulation under Subtitle C of RCRA for these wastes was not wal1'anted. On May 22, 2000, EPA published its Regulatory Dete r mination for the remaining CCRs and concluded that the remaining wastes were largely identical to t he high

volume monofilled wastes, which remained exempt based on the 1993 Regulatory Detelmination. The high volume wastes simply dominate the waste characteristics even when co

managed with other wastes, and thus, the May 2000 Regulatory Determination add ressed not only the remaining wastes, but effectively reopened the decision on CCRs that went to monofills. While some risks were aclmowledged to be associated with these wastes, EPA fmiher concluded that significant improvements were being made in waste m anagement practices due to increasing state oversight. On this basis, EPA chose to retain the Bevill exemption for CCRs, and the wastes would be regulated under Subtitle D of RCRA as solid wastes.

The Bevill Amendment to the Clean Air Act established a o ne

- time special process for making Bevill regulatory determinations for large volume, low toxicity wastes such as CCRs, and the

one

- time determination is well founded in case law (Solite Corp. v. EPA). In addition, a statutory

- mandated Bevill process must be followed before a Bevill exemption determination can be reversed. To reverse a Bevill exemption determination for a waste EPA must: 1) study the waste pursuant to eight study factors, 2) submit a repOli to Congress, 3) conduct public hearings and provid e an opportunity for comment on the report, and 4) if EPA determines that a change in the Bevill exemption for the waste is warranted, then it must engage in a notice and comment regulatory procedure to promulgate the regulations. EPA has not implemented t his procedure since the 1993 and 2000 determinations. Therefore, at this time EPA cannot legally reverse its 1993 and 2000 Regulatory Determinations for CCRs and pursue a Subtitle C hazardous waste designation for CCRs. For these reasons Cliffs urges EPA t o abandon its consideration of a Subtitle C determination for CCRs in this rulemaking.

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory auth ority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08270

- 7 

### Organization 1 

### : Cliffs Natural Resources Inc. (Cliffs) 

### Commenter 1 : David Z. Skolasinski Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.6 3.1.2 3.4.1.4.664



### Comment Excerpt Text:

T he Subtitle C Proposal To Regulate Inactive And / Or Previously Closed Surface Impoundments Is Unlawful

EP A proposes to extend RCRA Subtitle C jurisdiction to previously closed and/or inactive CCR surface impoundments (75 Fed. Reg. at 35,177). Even if s uch impoundments do not receive CCRs after the effective date of the rule, EPA would require these impoundments to close in compliance with the proposed rule. EPA attempts to tie this requirement to a new theory based on "passive leaking;" a theory that th e federal cOUli of appeals has struck down in several circuits. However, EPA lacks jurisdiction under RCRA over such impoundments, and its attempt to retroactively extend regulation over them is arbitrary and capricious because it is inconsistent
with EPA' s prior rulemakings.

The language of RCRA contemplates the regulation only of units that operate after the effective date of the relevant RCRA rulemaking. EPA itself admitted in 1980 that: RCRA is written in the present tense and its regulatory scheme i s organized in a way which seems to contemplate coverage only of those facilities which continue to operate after the effective date of the regulations. The [then] Subpmi D standards and [then] Subpmi E permitting procedures are not directed at inactive fa cilities.

43 Fed. Reg. 58,984. Because the statutory language is clear that only operating facilities should be subject to what are now the Subtitle C hazardous waste regulatory requirements, EPA's proposal to regulate previously closed and inactive impo undments containing CCRs is unlawful.

EPA also recognized in 1980 that: Enormous technical, legal, and economic problems would arise if these standards were to be directly applied to inactive facilities [i.e., those facilities which have ceased operatin g prior to the effective date of the Subtitle C regulations] and all such facilities were required to upgrade. Such an approach also does not seem equitable because of the enormous difficulty of bringing a closed facility into compliance, and because the p resent owner of land on which an inactive site is located might have no connection (other than present ownership of the land) with the prior disposal activities.

Id. For these reasons also, EPA decided in 1980 not to regulate closed or inactive facilitie s that were managing wastes being brought into the Subtitle C management system.

EP A provides no meaningful justification in its CUlTent proposal for reversing its earlier decision not to subject such units to regulation. In 1980, when EPA promulgated t he Subtitle C rules, the agency decided, based on a multitude of reasons (legal, practical, economic, equitable, and technical) that the regulations and permitting would not apply to the thousands of closed and inactive surface impoundments in essentially every industry in America.

Now, in an about

- face, EPA reverses course and tries unsuccessfully to justify the retroactive nature ofits current proposal by arguing in just a few sentences that the units contain large amounts of CCRs and generally refers t o the "significant risk" these units impose to justify the change in regulatory approach (75 Fed. Reg. at 35,177). EPA's proposal to regulate closed and65

inactive surface impoundments containing CCRs is arbitrary and capricious, and should be
abandoned in t he final rule.

Response: In this rule, the Agency is regulating under RCRA subtitle D, “ inactive CCR surface impoundments” as defined in section 257. 53 of the CCR rule. The commenter is also referred

to Unit VI , in particular the “a pplicability ” section of that unit which contains a detailed discussion of the Agency’s rationale for regulating these units.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08841

- 22 

### Organization 1 

### : Deseret Generation and Transmission Co

- operative 

### Commenter 1 : Howard Vickers
Co mmenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: EPA Cannot Promulgate Subtitle C Regulations For CCRs

EPA may not reverse its final Regulatory Determinations that CCRs do not warrant regulation under RCRA Subtitle C. Even setting aside EPA’s failure to comply with the Regulatory Flexibility Act as described above, the Proposal’s Subtitle C option is fundam entally flawed because EPA lacks the authority to reverse its 1993 and 2000 Regulatory Determinations, both of which found that CCRs do not warrant Subtitle C regulation. Congress established a detailed process by which EPA could determine whether and how to regulate CCRs under RCRA Subtitle
C

– and without which EPA has no authority to impose Subtitle C regulation on CCRs.

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08841

- 8 

### Organization 1 

### : Deseret Generation and Transmission Co

- operative 

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



### Comment Excerpt Text:66

Deseret is a member of the National Rural Electric Cooperative Association (NRECA) and we agree with NRECA’s position that EPA’s proposal to regulate CCRs under Subtitle C of RCRA is arbitrary and capricious and in direct contraventio n of the Bevill Amendment.

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The det ailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08850

- 2 

### Organization 1 

### : Lansing Board of Water & Light (BWL) 

### Commenter 1 : Lansing Board of Water & Light (BWL) Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.2 

### Comment Excerpt Text: RCRA's existing statutory structure is not appropriate for regulating CCRs at the federal level and EPA should defer any action unless and until Congress amends RCRA to provide specific authority for EPA to regulate CCR disposal.

Response: The Agency acknowledges and appreciates this comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 2 

### Organization 1 

### : Prairie State Generating Company, LLC (PSGC) 

### Commenter 1 : Keith Bastian Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.1 

### Comment Excerpt Text: The proposal's Subtitle C option would constitute an impermissible reversal of the final 2000 Regulatory Determination. Accordingly, EPA should pursue regulation under Subtitle D.

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at iss ue here because the Agency is not making a final Bevill determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 32 

### Organization 1 

### : Prairie State Generating Company, LLC (PSGC)67



### Commenter 1 : Keith Bastian Commenter Type: Electric Utility Company
Classifi cation: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.4.1.4.6 

### Comment Excerpt Text: Retroactive Application of RCRA (40 C.F.R, §§ 264.1300 and 265.1300) For the first time in EPA's thirty

- year implementation of RCRA, EPA proposes to extend RCRA Subtitle C jurisdiction to previously closed and/or inactive facilities. 75 Fed. Reg. at 35177. Such an approach is not only unlawful, but inconsistent with EPA's administration of the RCRA program: Subtitle C regulati ons are prospective in nature and are not directed at inactive facilities EPA's decision to overturn thirty years of regulatory precedent turns on the theory that the definition of "regulatory disposal" encompasses "passive leaking" and includes "the conti nued release of constituents to surrounding soil and groundwater through the continued infiltration of precipitation through inappropriately closed CCR impoundments .... " Id. at 35177. However, EPA fails to recognize that such an interpretation bas been r ejected by the courts. Several United States Courts of Appeals soundly rejected the interpretation EPA is proposing. See e.g., Carson Harbor Village v. Uno cal Corp., 270 F.3d 863 (9th Cir. 2001); ABB Industrial Systems v. Prime Technology, 120 F.3d 351, 3 58 (2nd Cit'. 1997); United States v. CDMG, 96 F.3d 706, 711 (3rd Cir. 1996); and Joslyn Manufacturing Co. v. Koppers Co., 40 F.3d 750, 762 (5th CiT. 1994). EPA's decision to reach back to inactive surface impoundments is therefore arbitrary, capricious,

a nd unlawful.

Response: The Agency is regulating the disposal of CCR under s ubtitle D of RCRA. The Agency has also determined that regulation of inactive CC R surface impoundments as defined in section 257.53 is appropriate and necessary as discussed in U nit VI of the preamble supporting
this rule. The commenter is referred to the applicability section for a complete discussion.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 9 

### Organization 1 

### : Prairie State Generating Company, LLC (PSGC) 

### Commenter 1 : Keith Bastian Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: The essential flaw in the Subtitle C option is that it is premised on the notion that EPA is at liberty to reverse its final Regulatory Determination that CCRs do not warrant regulation under Subtitle C of RCRA. Because the statute does not authorize EPA to reverse its final Regulatory Determination, EPA may not adopt the Su btitle C hazardous waste option for CCRs. Even assuming for purposes of argument that the statute did authorize such reversal, EPA's proposal to regulate CCRs under Subtitle C does not comport with the Bevill Amendment's statutorily68

prescribed decision

- mak ing process and would be arbitrary and capricious. For example, the Subtitle C option would adversely impact CCR beneficial use and impose unwarranted and excessive costs on the utility industry.

Response : The commenter is referred to the preamble discus sion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is n ot making a final Bevill determination. Furthermore, with respect to beneficial use, the commenter is referred to Units IV and VI of today’s preamble for a complete discussion on the beneficial use aspects of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09334

- 10 

### Organization 1 

### : Manitowoc Public Utilities (MPU) 

### Commenter 1 : Nilaksh Kothari Commenter Type: Electric Utility Facility
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The Subtitle C option actually represents an unprecedented expansion of RCRA's Subtitle C jurisdiction by extending hazardous waste controls to previously closed, inactive CCR disposal
units. This is the most far

- reaching application of hazardous was te disposal controls in EPA's 30

- year implementation of the federal program and would subject CCRs to more onerous disposal controls than for any other hazardous waste regulated under Subtitle C.

Response: The Agency is regulating the disposal of CCR under subtitle D of RCRA. The Agency has also determined that regulation of inactive CCR surface impoundments as defined in section 257.53 is appropriate and necessary as discussed in Unit VI of the preamble supporting this rule. The commenter is referred to the applicability section of the preamble for a complete

discussion.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09425

- 2 

### Organization 1 

### : Alstom Power, Inc. 

### Commenter 1 : Robert G. Hilton Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.3.1 

### Comment Excerpt Text:

Hazard versus Non

- Hazardous69

Coal combustion residues are not a listed hazardous waste. Coal combustion residues, either as produced or properly managed, do not exhibit or meet any of the criteria established by EPA for a characteristic hazardous waste. Alstom has tested virtually hundreds of coal combustion residues and found this to be the case. Therefore, the imposition of a generic hazardous status is completely inappropriate.

Further, we find that the decision to consider the byproducts as hazardous based on a structural failure of a dike is inconsistent with EPA historical findings. Other byproducts, s uch as tailings and slag, have experienced similar structural failures and slides and the materials involved have not been deemed generically hazardous for an entire industry as a result.

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

- 09427

- 5 

### 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:



### Comment Excerpt Text:

San Mi guel is a member of the National Rural Electric Cooperative Association (NRECA) and we agree with NRECA’s position that EPA’s proposal to regulate CCRs under Subtitle C of RCRA is arbitrary and capricious and in direct contravention of the Bevill Amendment

.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09427

- 9 

### 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:



### Comment Excerpt Text:

EPA Cannot Promulgate Subtitle C Regulations For CCRs EPA may not reverse its final Regulatory Determinations that CCRs do not warrant regulation70

under RCRA Subtitle C. Even setting aside EPA’s failure to comply with the Regulatory Flexibility Act as described above, the Proposal’s Subtitle C option is fundamentally flawed because EPA lacks the authority to reverse its 1993 and 2000 Regulatory Determinations, both of which found that CCRs do not warrant Subtitle C regulation. Congress established a detailed

pro cess by which EPA could determine whether and how to regulate CCRs under RCRA Subtitle
C

– and without which EPA has no authority to impose Subtitle C regulation on CCRs.

Response: The Agency acknowledges and appreciates the comment. The commenter is
ref erred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under
subtitle D of RCRA. The commenters concerns with the Agency not complying with the process requirements for making a Bevill Determination are premature at this poi nt in time in that the Agency i s deferring a Bevill Determination on CCRs.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09712

- 10 

### Organization 1 

### : Basin Electric Power Cooperative (BEPC) 

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



### Comment Excerpt Text:

Basin Electric Power Cooperative's Legal Objections to Regulating CCRs under RCRA subtitle
C

The Bevill Amendment does not provide EPA with the authority to revoke its previous final determination in its Report to Congress that materials generated from the combustion of coal are to be regulated under subtitle D, rather than subtitle C.

In 1980, the Bevill Amendment added provisions to the R esource Conservation and Recovery Act (RCRA)' that required the EPA Administrator to do three things with regard to coal ash and coal combustion residuals (CCRs): 1) conduct a study and submit it to Congress to determine the amounts, impacts, disposal, and usesfor CCRs;2 2) determine whether or not to regulate CCRs as a hazardous waste under subtitle C of RCRA;3 and, in the meantime, 3) regulate CCRs as a non

hazardous waste until the final determination whether or not to regulate CCRs as a hazardous

waste under subtitle Cwas made.4

The study of CCRs to be submitted to Congress evaluated the following eight factors: 1) the source and volumes of CCR materials generated per year; 2) present disposal and utilization practices; 3) potential danger, if any, to human health and the environment from disposal and reuse of such materials; 4) documented cases in which danger to human health or the environment from surface runoff or leachate has been proved; 5) alternatives to current disposal methods; 6) costs of suc h alternatives; 7) the impact of those alternatives on the use of coal and other natural resources; and 8) the current and potential utilization of such materials.571

After the study was completed and submitted to Congress, the Bevill Amendment also requir ed that the EPA Administrator "shall, after public hearings and opportunity for comment, either determine to promulgate regulations under this subchapter6 [footnotes: 1 42 U.S.C . 6901 et seq.; 2 RCRA 8002(n); 42 U.S.C. 6982(n); 3 RCRA 3001(b)(3)(C); 42 U. S.C. ? 6921(b)(3)(C); 4 RCRA 3001(b)(3)(A); 42 U.S.C. 6921(b)(3)(A); 5 RCRA 8002(n), 42 U.S.C. 6982(n). The
Committee on Environment and Public Works of the United States Senate and the Committee on Energy and Commerce of the United States House of Represe ntatives were the Senate and House Committees upon which the sponsors of the "Bevill Amendment," Senator Lloyd Benston and Congressman Thomas Bevill, sat; 6 "[T]his subchapter" is subtitle "C," the hazardous waste provisions of RCRA at RCRA 3001

- 3023, 42 U .S.C . 6921

- 6939e.] [i.e., under subtitle C of RCRA as a hazardous waste] for each waste listed in subparagraph (A)7 of this paragraph or determine that such regulations are unwarranted."8

Subparagraph (A) forbid the regulation of coal ash materials as h azardous wastes under subtitle "C"9 until at least six months after the date of submission of the study of coal combustion materials under 42 U.S.C. 6982(n) to Congress, and the "promulgation of regulations in accordance with subparagraph (C)"

- i.e., under 42 U.S.C. 6921(b)(3)(C).10

As summarized below, EPA and the EPA Administrator previously have conducted the studies and made the findings and report to Congress they were required to complete and submit under 42 U.S.C. 6982(n). Additionally, the EPA and the EPA Administrator previously have made the mandated determinations that EPA was required to make under 42 U.S.C. 6921(b)(3)(A) and 6921(b)(3)(C) about whether to regulate coal ash combustion materials as a hazardous waste
under subtitle C.

The EPA de termined that the breadth of the coal combustion residuals report was such that it would be difficult to complete the study under 42 U.S.C. 6982(n) in time to meet the October 21,1982 statutory deadline," so EPA decided to divide the statutorily

- mandated R eport to Congress into two phases.

The first phase addressed the four large

- volume CCRs generated by coal

- fired electric utilities (including fly ash, bottom ash, boiler slag, and flue gas desulfurization materials). This Report was submitted to Congress on March 8, 1988 ("1988 Report to 12 Congress"). It concluded that the large

- volume coal combustion waste streams considered in the first phase (fly ash, bottom ash, boiler slag, and flue gas emission control waste) generally do not exhibit hazardous
char acteristics under RCRA.13 Accordingly, EPA stated that it did not intend to regulate those four large

- volume coal combustion waste streams.14 This initial Report went on to encourage
the utilization of coal combustion wastes to the extent that such utiliza tion could be done in an environmentally safe manner.15 After the study required by 42 U.S.C. 6982(n) was completed, EPA made the determination required by 42 U.S.C. 6921(b)(3)(A) and 6921(b)(3)(C) concerning whether or not to regulate the four large

- volum e CCRs under subtitle C: "EPA concludes that Subtitle C is inappropriate to address the problemsassociated with these wastes and that the site or region specific State approach is ' [footnotes: 7 Subparagraph (A)(i) lists "Fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels." RCRA 3001(b)(3)(A)(i); 42 U.S.C. 6921(b)(3)(A)(i). 8 RCRA 3001(b)(3)(C); 42 U.S.C. 6921(b)(3)(C). 9 RCRA 3001

- 3023,42 U.S.C. 6921

- 6939e. 1072

RCRA 3001(b)(3)(A); 42 U.S.C. 6921(b)(3)(A). 11 RCRA 8002(n), 42 U.S.C. 6982(n), required that the study and report of the eight factors lised in that subsection be completed and submitted to the Senate and House committees Senator Benston and Congress man Bevill sat on no later
"than 24

- months after October 21, 1980." 12 See 1988 Report to Congress at ES

- 2, 58 Fed. Reg. 42466, 42467 (Aug. 9, 1993). 13 1988 Report to Congress at ES

- 6. 14 Id.15 Id. at ES

- 8.] appropriate for addressing the limited human he alth and environmental risks involved with the disposal of [these four large

- volume CCR] wastes."16

The second phase covered all other combustion wastes generated by utilities and non

- utilities, including the above CCRs when co

- managed with certain low v olume wastes, and was reported to Congress in 1999." Again EPA made the required finding under 42 U.S.C. 6921(b)(3)(A) and 6921(b)(3)(C), and determined once again that such CCR wastes are more appropriately regulated under subtitle D rather than subtitle C of RCRA.18

In sum, EPA has conducted the studies required by 42 U.S.C. 6982(n), and made the determinations required by 42 U.S.C. 6921(b)(3)(A) and 6921(b)(3)(C) for CCRs. The determination was that CCRs are to be regulated under subtitle D, not subtit le C. Congress did not give EPA statutory authority to reconsider this [footnotes: l6 58 Fed. Reg. at 42477. EPA gave the following reasons for this determination under 42 U.S.C. 6921(b)(3)(A) and 6921(b)(3)(C): After reviewing industry practices and curre nt State and Federal regulation, EPA reviewed the alternative scenario of regulating the four large

- volume [CCR] wastes under Subtitle C. First, it was recognized that coal combustion wastes rarely exceed the RCRA characteristics for hazardous waste, and t herefore, that most coal combustion wastes would not be subject to Subtitle C controls unless they were listed as hazardous wastes. Furthermore, it was noted that even if these wastes were listed as hazardous, and therefore, regulated under Subtitle C, suc h an approach would be inappropriate for these wastes. A Subtitle C system would require coal combustion units to obtain a Subtitle C permit (which would unnecessarily duplicate existing State requirements) and would establish a series of waste unit design and operating requirements for these wastes,which would generally be in excess of requirements to protect human health and the environment. For example, if such wastes were placed in the Subtitle C universe, all ash disposal units would be required to mee t specific liner and monitoring requirements. Since [CCR] sites vary widely in terms of topographical, geological, climatological, and hydrological characteristics (e.g., depth to groundwater, annual rainfall, distance to drinking water sources, soil type) and the wastes' potential to leach into the groundwaterand travel to exposure points is linked to such factors, it is more appropriate for individual States to have the flexibility necessary to tailor specific controls to the site or regionspecific risks posed bythese wastes. 58 Fed. Reg. at 42477. l7 1999 Report to Congress at
ES1

- 2, and 65 Fed. Reg. 32214, 32218 (May 22, 2000). 18 EPA drew the following conclusion : The Agency has concluded these wastes do not warrant regulation under subtitle C of RCRA and is retaining the hazardous waste exemption under RCRA section 3001(b)(3)(C) [42 U.S.C. 6921(b)(3)(C)]. However, EPA has also determined national regulations under subtitle D of RCRA are warranted for coal combustion wastes when they are disposed in lan dfills or surface impoundments, and that regulations under subtitle D of RCRA (and/or possibly modifications to existing regulations established under authority of the Surface Mining Control and Reclamation Act (SMCRA)) are warranted when these wastes are used to fill surface or underground mines. 65 Fed. Reg. at 32214.] determination anywhere in 42 U.S.C. 6921(b)(3)(A), 6921(b)(3)(C),73

6982(n), or in any other provision of the Bevill Amendment or RCRA. Reconsideration of whether CCRs should be regulated und er subtitle C rather than subtitle D as attempted in this rulemaking is therefore barred under several established provisions of law.

First, under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,19 a court implements the two

- prong test se t forth in Chevron to review the validity of an administrative agency's "construction of the statute which it administers."20 Under the first prong, the court must examine first whether Congress has expressed a clear intent with regard to the particular
is sue in dispute.21 If there is an unambiguously expressed congressional intent, both the court and the agency must comply.22

In this case, EPA's attempt to reconsider whether to regulate CCRs under subtitle C violates the unambiguously expressed congressi onal intent that there be one such determination which becomes final when promulgated and reported to Congress. EPA has completed the required study, and made the mandatory determination required by 42 U.S.C. 6921(b)(3)(A) and 6921(b)(3)(C) concerning whet her to regulate CCRs under subtitle C as a hazardous waste. The Bevill Amendment does not provide for a reconsideration of that determination more than 30 years after the statute was enacted, and more than 20 years after EPA's determination in 1988
that CC Rs should not be regulated under subtitle C. EPA's June 21, 2010 CCR rulemaking, therefore, fails the first prong of the Chevron test: it is counter to the clear intent of Congress expressed in the statute. Any change to this statutorily created process an d determination, if it is to be made, must be made by Congress, not by EPA as the regulating agency.

Second, under the second prong of Chevron,23 Congress's failure to grant an agency a given power is not an ambiguity as to whether that power has, in fac t, been granted. On the contrary, a statutory silence on the granting of a power is a denial of that power to the agency.24 It is a fundamental principle of administrative law that an agency's authority to act must come directly from Congress. Absent such authority, an agency may not act.25 EPA has already acknowledged that the Bevill Amendment does [footnotes: 19 467 U.S. 837, 842

- 43 (1984). 20 Id. At 842. 21
Id.
22 Id. at 842

- 43. 23 Id. at 843. 24 American BusAssn v. Slater, 231 F.3d 1, 8 (D.C . Cir. 200 0) (Sentelle, J., concurring) (emphasis added). 25 See U.S. Telecom Assn v. FCC, 359 F.3d 554, 566 (D.C. Cir. 2004) ([S]tatutory silence simply leaves th[e] lack of authority untouched. In otherwords, the failure of Congress to use Thou Shalt Not language doesn't create a statutory ambiguity of the sort that triggers Chevron deference.); Ethyl Corp. v. EPA, 51 F.3d 1053, 1060 (D.C. Cir. 1995) ("We refuse . . . to presume a delegation of power merely because Congress has not expressly withheld such power."); Ry. Labor Executives' Ass'n v. Nat7 Mediation Bd., 29 F.3d 655, 671 (D.C. Cir. 1994) (en banc) ("Were courts to presume a delegation of power absent an express withholding of such power, agencies would enjoyvirtually limitless hegemony, a result plainly o ut of keeping with Chevron and quite likely with the Constitution as well.") (emphasis in original); Adams Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990) ("A `gap' is not created in a statutory scheme merely because a statute does not restate the truism th at States may not preemptfederal law."); Aid Assn for Lutherans v. USPS, 321 F.3d 1166,1174

- 75 (D.C. Cir. 2003) ("[T]he Postal Service's position seemsto be that the disputed regulations are permissible because the statute does not expresslyforeclose the c onstruction advanced by the agency. We reject this position as entirely untenable under well

- established case law. . .").] not include a74

process for Agency reversal of the CCR final Regulatory Determinations: in response to an inquiry from Representative M arkey following the Kingston ash release regarding whether and how EPA could reverse its final CCR RegulatoryDeterminations for CCRs, EPA's then

- Acting Associate Administrator readily acknowledged that RCRA does not specifically spell out the process by wh ich we [would] revise the Regulatory Determination ." See Jan. 30, 2009 letter from Joyce K. Frank, EPA Acting Associate Administrator, to Rep. Markey, Chair, House Committee on Energy and Commerce, at 3. In sum, RCRA does not grant EPA regulatory
authorit y to revise its regulatory determination that CCRs are to regulated under subtitle D,
rather than subtitle C.

Third, when Congress has intended to grant EPA authority to revise or periodically review a regulatory standard or determination, it has express ly given that statutory authority. For example, under the Clean Air Act, Congress has directed the EPA to periodically review, revise, and publish air quality criteria for pollutants (42 U.S.C. 7408), to periodically review, revise, and publish the statuto ry list of hazardous air pollutants (42 USC 7412(b)(2)), and, and at five year intervals, to complete a thorough review of the criteria for pollutants published under 42 U.S.C. 7408 and the national ambient air quality standards promulgated under 42 U.S.C. 7409 and make such revisions as may be appropriate . Likewise, under the Clean Water Act, Congress has directed the EPA to review and revise its published water quality standards from time to time (33 U.S.C. 1314(a)), to review its published regulations f or effluent limitations annually and revise them if appropriate (33 U.S.C. ?1314(b)), to from time to time review, revise, and publish information on the processes or operating methods which result in the elimination or reduction of the discharge of pollut ants (33 U.S.C. 1314(c)), and, as technology and alternatives change, to revise its publishedregulations establishing Federal standards of performance for new sources of pollution (33 U.S.C. 1316). In sum, as these examples illustrate, when Congress intend s to give EPA the authority to revise and reconsider, it has given the EPA Administrator explicit authority to do so. No such authority has been given by EPA to reconsider whether CCRs should be regulated under subtitle C.

Finally, administrative issue p reclusion and administrative res judicata provide an additional supporting rationale to bar reconsideration of this issue by EPA. In United States v. Utah Construction & Mining Co.,26 the seminal case on administrative res judicata, the Supreme
Court deter mined that the decision of a federal administrative agency should be given preclusive effect "when an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the partieshave had an adequate oppor tunity to litigate."27 The study, findings, and determination that the provisions of the Bevill Amendment required EPA to make concerning whether to regulate CCRs under subtitle C as a hazardous waste were more quasi

-

judicial than [footnotes: 26 384 U.S. 3 94 (1966). 27 Id. at 422.] quasi

- legislative in
nature. It was not a rule

- making. The study required particular fact

- finding, and gave adequate opportunity to all members of the public to participate in this decision, and to ask for
reconsideration and to appeal EPA's ultimate final decision not to regulate CCRs under subtitle C. Further, even if the traditional rules of res judicata do not fit exactly to the particular unique
administrative actions and determinations that the Bevill Amendment mandated EPA to make, those rules support the basic underlying policy that the common law doctrine of res judicata evolved to prevent: that is, to prevent the same parties from re

- litigating the same facts and issues that have alreadybeen determined in a prior administ rative proceeding.75

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed review process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09870

- 4 

### Organization 1 

### : Otter Tail Power Company 

### Commenter 1 : W. Uggerud Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: To be honest, I am offended at the potential over

- reach by the federal government that would result from classifying coal ash as hazardous . The EPA itself has previously conducted studies and has issued two reports to Congress concluding that coal ash is not hazardous. The position that coal ash is a nonhazardous material has been supported by letters and testimony from the House and Senate as well as the National Governors Association, the National Conference of State Legislators, the Conference of Mayors , thirty~two states, state regulatory commissions, state highway departments, state agricultural departments as well as countless users of coal combustion products. '

Response : The commenter is referred to the preamble discussion in Unit IV of the rule relating
to the Bevill determination , as well as the discussion on statutory authority found in Unit II of the preamble discussion. The detailed process of which the commenter speaks is not at issue here because the Agency is not making a final Bevill det ermination. The Agency however points the commenter to the preamble discussion on damage cases caused by the improper management of CCR in Unit XI.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 40 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG) e t al. 

### Commenter 1 : James R. Roewer Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.6 

### Comment Excerpt Text: A. EPA’s Position On Passive Migration Is Contradictory To Federal Case Law

EPA‘s current position that RCRA‘s definition of “disposal” applies to closed and/or inactive76

units has been flatly rejected by the courts. Five United States Courts of Appeals have looked directly at the question of whet her the definition of “disposal” includes the type of passive migration that EPA is proposing to force into the scope of these regulations. All five courts have soundly rejected this interpretation. [Footnote 28: Notably, the only Administrative Law Judge (“ALJ”) to have considered this issue also concluded that the term “disposal” does not include the passive migration of hazardous waste. In re Globe Aero Ltd., Inc. and the City of Lakeland, 1996 EPA ALJ Lexis 47 (June 4, 1996). The ALJ held that “[d]ispos al is an act rather than a state of continued noncompliance. The fact that the waste or waste constituents may migrate does not provide a basis for finding a continued disposal violation.” Id. (internal citations omitted).”] Although these cases have consi dered the definition of disposal in the context of CERCLA, 42 U.S.C. § 9601 et seq., “the distinction is of no moment” as CERCLA specifically incorporates by reference RCRA‘s statutory definition of “disposal.” Delaney v. Town of Carmel, 55 F. Supp. 2d 237 , 256 (S.D.N.Y. 1999); see also Interfaith Cmty. Org. v. Honey

- Well Intl Inc., 263 F. Supp. 2d 796, 846 n.10 (D.N.J. 2003) (finding that although the Third Circuit‘s opinion in United States v. CMDG Realty Co., 96 F.3d 706 (3rd Cir. 1996), “addressed
CERCL A liability, the Court was interpreting the RCRA definition of ?disposal‘“ and the Third Circuit‘s holding was therefore controlling in an assessment of RCRA liability as well). [Footnote 29: See CERCLA § 101(29), 42 U.S.C. § 9601(29) (“The term[] ?disposa l‘ shall have the same meaning provided in section 1004 of the Solid Waste Disposal Act . . . .)”]

Under RCRA, “disposal” means:

[t]he discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or
hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.

RCRA § 1004(3), 42 U.S.C. § 6903(3). Most recently, the C ourt of Appeals for the Ninth Circuit joined four other circuit courts in rejecting the notion that the passive migration of contaminants through the soil falls within this statutory definition of “disposal.” See Carson Harbor Vill. v. Unocal Corp., 270 F. 3d 863 (9th Cir. 2001). Adhering to the Supreme Court‘s admonition that “[i]n examining the statutory language, we . . . adhere to the ‘Plain Meaning Rule,‘“ the court reasoned that “[i]f we try to characterize this passive soil migration in plain English, a number of words come to mind, including gradual ‘spreading,‘ ‘migration,‘ ‘seeping,‘ ‘oozing,‘ and possibly ‘leaching.‘ But certainly none of those words fits within the plain and common meaning of ‘discharge, ... injection, dumping, ... or placing.‘“ Id. a t 879 (ellipses in original). The Ninth Circuit‘s holding in Carson Harbor Vill.. therefore is directly at odds with EPA‘s proposed interpretation that the passive migration of constituents from previously closed CCR surface impoundments constitutes “dispo sal” under RCRA. See also Delaney, 55 F. Supp. 2d at 256 (“the alleged passive migration of hazardous waste, through the groundwater or otherwise[,] ... does not constitute ?disposal‘ of hazardous waste as defined in RCRA”).

In addition, the Sixth Circuit h as held that “because ?disposal‘ is defined primarily in terms of active words such as injection, deposit, and placing, the potentially passive words ?spilling‘ and ?leaking‘ should be interpreted actively[.]” United States v. 150 Acres of Land, 204 F.3d 6 98, 706 (2000). As there would be no human activity involved in the movement of water through77

closed and/or inactive CCR impoundments, EPA‘s proposed expansion of the definition of “disposal” to include passive migration directly contradicts the Sixth Circ uit‘s holding.

The Second Circuit has similarly agreed that “[n]one of these terms [i.e., discharge, deposit, injection, dumping, spilling, leaking, or placing] is commonly used to refer to the gradual spreading of hazardous chemicals already in the groun d.” ABB Industrial Systems v. Prime Technology, 120 F.3d 351, 358 (2d Cir. 1997). Therefore, this Circuit‘s holding would also not permit EPA‘s proposed expansion of “disposal” to include the gradual spreading of chemicals already in the ground.

In additi on, the Third Circuit has held that, based on the plain meaning of the words used to define disposal, “the passive migration of contamination dumped in the land prior to ownership does not constitute disposal.” United States v. CDMG, 96 F.3d 706, 711 (3rd Cir. 1996). The Third Circuit noted that its conclusion was supported by the fact that the term “leaching” is not included in the statutory definition of “disposal.” Id. at 715. The Third Circuit‘s holding in CDMG rejects EPA‘s efforts to force the “passiv e migration” of wastes into the definition of “disposal.”

The Fifth Circuit has also agreed that where the plaintiff “failed to show that any hazardous waste ?leaked‘ or ?spilled‘ during [the defendant‘s] ownership of the property[,] a disposal did

not oc cur during [the defendant‘s] ownership.” Joslyn Mfg. Co. v. Koppers Co., 40 F.3d 750, 762 (5th Cir. 1994). This position is consistent with the holdings in the Second, Third, Sixth and Ninth Circuits, and similarly demonstrates that EPA‘s proposed passive disposal theory violates RCRA‘s clear statutory language.

Response: The Agency acknowledges and appreciates the comment however it is outside the scope of today’s rulemaking

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 41 

### 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: B. EPA’s Proposal Runs Afoul Of Congress’ Statutory Scheme

As EPA knows, it is elementary that RCRA‘s Subtitle C hazardous waste rules have properly and consistently been construed as being prospective in nature. Remedial statutes such as CERCLA, as well as RCRA‘s imminent and substantial endang erment provision, are the congressionally

provided statutory mechanisms that EPA has used to address historic waste management operations, including previously closed CCR surface impoundments. See Gwaltney of Smithfield78

v. Chesapeake Bay Found., 484 U.S. 4 9, 57 (U.S. 1987) (noting that Congress “has demonstrated ... [through amendment of RCRA‘s citizen suit provision in 1984 to include Section 7002(a)(1)(B)] that it knows how to avoid th[e] prospective implication [of the RCRA statute] by using language tha t explicitly targets wholly past violations.”).

The prospective nature of RCRA‘s Subtitle C regulatory program derives from the plain language of RCRA Section 3004(a), under which EPA is authorized to promulgate Subtitle C regulations, including the propo sed regulations at issue here. That language provides, in pertinent part, that EPA is to promulgate regulations “applicable to owners and operators of facilities for the treatment, storage, or disposal of hazardous waste.” 42 U.S.C. § 6924(a). In contrast to RCRA‘s imminent hazard and citizen suit provisions where Congress specifically referenced “past” disposal practices, the language of Section 3004(a) makes clear that the Subtitle C regulations are to apply only to active, ongoing treatment, storage, and disposal operations

– not to closed and/or inactive facilities. See, e.g., RCRA § 7002 (a)(1)(B)(authorizing a citizen suit against any “past or present” generator, transporter, owner, or operator of a treatment, storage, or disposal facility “who has con tributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of certain hazardous waste”).

Additionally, EPA‘s proposed interpretation of “disposal” renders the statutory phrase “past . . . disposal . . . of any solid or hazardous waste” in RCRA‘s imminent and substantial endangerment provision meaningless because, under the Agency‘s interpretation, as applied to CCR impoundments, there can be no “past” disposal of CCRs in impoundments, only present,

ongo ing disposal. This interpretation of the statute defies both logic and the plain language of the statute. See Allen Oil Co., Inc. v. Comm’r of Internal Revenue, 614 F.2d 336, 339 (2d Cir.1980) (“[A] statute must, if reasonably possible, be construed in a w ay that will give force and effect to each of its provisions rather than render some of them meaningless.”).

Furthermore, as the Third Circuit in United States v. CDMG noted in finding that the definition of disposal does not include passive migration, th e term “leaching” is not included within the scope of the activities that constitute disposal. 96 F.3d at 715. “Leaching” is not an obscure term that Congress would have overlooked in drafting the definition of “disposal.” [Footnote 30: As EPA well knows, “leaching” is the “process or an instance of separating the soluble components from some material by percolation,” see Webster‘s Third New International Dictionary, Unabridged 1285 (Philip Babcock Gove & the Mirriam

- Webster Editorial Staff eds., 1986), and is commonly used in the environmental context to describe the type of migration of contaminants (i.e., “the continued release of constituents to surrounding soil and groundwater through the continued infiltration of precipitation”) that EPA now proposes i nclude in its overly expansive interpretation of the definition of “disposal.” Id. (“Leaching of contaminants from rain and groundwater movement is a principal cause of contaminant movement in landfills, see Superfund [Exposure Assessment Manual 8 (1988)], and is the predominant cause of groundwater contamination from landfills, Edward Repa & Charles Kufs, Leachate Plume Management 2 (1985).”)] Rather, inclusion of the term “leaching” in the definition of “release” under other provisions of the CERCLA statu te demonstrates that Congress was aware of this process, understood it was conceptually different than “leaking” or “spilling,” and chose not to include it in RCRA‘s definition of “disposal.” EPA‘s proposal, which would essentially read a term into79

RCRA‘s definition of disposal that Congress had included in similar statutes, but chose not to include here, impermissibly violates fundamental canons of statutory construction.

Response: Under this rule, EPA is regulating the disposal of CCR under subtitle D of RCRA. The commenter is referred to Unit IV of the preamble for a discussion of this decision.



### Comment Number: TRANS

- CLT

- 0071

- 1 

### Organization 1 

### : North Carolina Conservation Network 

### Commenter 1 : Dan Conrad Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.1 

### Comment Excerpt Text: In my testimony today I would like to enter two items into your official record, and make a few
brief comments in favor of coal ash re gulation under Subtitle C of RARA. The first item I would like to enter into the record is a memo endorsed by 17 environmental North Carolina groups, detailing the need for coal ash regulation in North Carolina. The second item is a petition signed by ov er 1500 concerned North Carolina citizens urging that the EPA enact the more stringent of their two proposals, under Subtitle C of RARA. RCRA defines "hazardous waste" as a solid waste or combination of solid wastes, which because of its quantity, concent ration, or 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 illness; or B, pose a substantial present or potential ha zard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed. I'd like to draw your attention to two specific words in the statute: "may" and "or." "May"
indicates not that an outcome must occu r, 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 ash actually meet both criteria A and criteria B of the definition. 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 will probably cause loss of life. It is diffic ult for me to imagine a case where loss of human life would not qualify as an increase in mortality. Regarding criteria B, all 13 of the coal ash ponds in North Carolina that have conducted testing have been found to exceed North Carolina groundwater stan dards. In one case, arsenic concentrations were measured at 44 times the primary maximum contaminant level. Again, it is difficult to imagine a scenario where arsenic concentrations found in contaminated groundwater at 44 times the federal MCL would not po ssibly pose a substantial present or potential hazard to
human health or the environment. Under either criteria, it is evident that coal ash is encapsulated by RCRA's definition of hazardous waste. With that in mind, the North Carolina Conservation Networ k urges that at a80

minimum the EPA adopt the more stringent of its two current proposals, regulating coal ash
under Subtitle C of RCRA

Response: The Agency acknowledges and appreciates the comment.

Section 2.1.2

- RCRA Subtitle D authority (35136, 35192) Total Number of Submissions: 20 Total Number of Comments: 28



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06275

- 2 

### 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: Examine Context Assigned/Due:
Other Sections: 2.1.1 

### Comment Excerpt Text: RCRA’s existing statutory structure is not appropriate for regulating CCRs at the federal lev el and EPA should defer any action unless and until Congress amends RCRA to provide specific authority for EPA to regulate CCR disposal.

Response: The Agency acknowledges and appreciates the comment. T he commenter is referred to Unit IV of the preamble discussion for the Agency’s rationale for promulgating a subtitle D rule for the management of CCR.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06275

- 24 

### Organization 1 

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

### Commenter 1 : Jeffr ey L. Woolstrum Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.1 

### Comment Excerpt Text:

To The Extent That EPA Determines CCRs Warrant Federal Regulation, Congress Should Amend RCRA To Provide EPA With The Appropriate Tools For Promulgating And Enforcing Such Regulations.

The preceding section of these Comments demonstrates that the Michigan Legislature enacted a comprehensive statutory scheme g overning the use and disposal of CCRs in Michigan. This81

statutory scheme authorized MDNRE to promulgate regulations that are tailored to CCRs and that ensure CCRs are either used in an environmentally safe manner, or disposed of in landfills that comply wi th appropriate location, design, construction, and operating requirements. The United States Congress, however, did not grant to EPA similar regulatory authority over CCRs in RCRA. Accordingly, EPA’s current proposal attempts to fit the “square peg” of CCR s into the “round holes” of either Subtitle D or Subtitle C of RCRA. Neither option provides a good fit.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of 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 s olid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06275

- 27 

### 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: Examine Context Assigned/Due:
Other Sections: 2.1.1 

### Comment Excerpt Text: LBWL and MSU believe that, instead of EPA’s current effort to force CCR regulations into an
ill

- fitting statutory struc ture, EPA should allow Congress to address this issue and, if appropriate, amend RCRA to provide EPA with the express authority to achieve its regulatory objectives. LBWL and MSU concur with the following statement from the Congressional Research Service

c ontained in its September 21, 2010 report (attached as Exhibit H) concerning Congress’s legislative options concerning CCR regulations: [Footnote 36: Congressional Research Service, Regulating Coal Combustion Residuals: Issues for Congress]

Members of Co ngress have several legislative options to address concerns expressed by [EPA, environmental groups, and industry]. Congress may choose to direct EPA to leave the Bevill exemption in place and continue to exempt the material from regulation as hazardous wa ste. This may be problematic in that the original amendment directed EPA to hold the exemption pending a report to Congress on various factors regarding the waste’s volume, disposal, and actual harm and potential risks associated with its disposal. For the past 30 years, EPA has been gathering that information and has determined that improper management poses significant risks to human health and the environment and that those risks could be minimized through some form of national regulation. Instead of (or in addition to) prohibiting EPA from regulating the waste under Subtitle C, Congress could choose to give EPA additional authority to regulate it under Subtitle D. It may specifically direct EPA to establish waste management criteria under Subtitle D appl icable to solid waste management facilities that receive CCW. Such provisions could potentially draw from the existing distinction between an “open dump” and a “sanitary landfill”82

(a facility from which there is no reasonable probability of adverse effects on health or the environment from disposal of solid waste). Similar to the HSWA amendments that authorized EPA to establish criteria applicable to MSW landfills, Congress could specifically authorize EPA to revise existing solid waste management criteria to include standards applicable to landfills and surface impoundments that accept coal combustion wastes. Further, Congress could require states to adopt a permit program to assure that coal combustion waste management facilities within the state meet EPA’ s management criteria.

Congress could also choose to create a new subtitle under RCRA (a Subtitle K) that would specifically address issues unique to the management of CCW. Such a proposal could include a number of legislative provisions, but, broadly, co uld direct EPA to develop waste management standards applicable to disposal units that accept CCW (similar to Subtitle D), but also provide EPA with federal enforcement authority to require states to implement those standards (similar to Subtitle C) while avoiding labeling the material a “hazardous” waste. Such a proposal could also authorize EPA to specifically regulate certain beneficial uses (such as construction fill).

Congress may also choose to do nothing. That is, Congress may allow the current rule making process to continue and allow EPA to select either its Subtitle C

- or D

- related proposal.

Response: 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 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

- 06275

- 43 

### 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: Examine Context Assigned/Due:
Other Sections: 2.1.1 

### Comment Excerpt Text: Neither Subtitle C nor Subtitle D of RCRA provides the proper framework for appropriate federal regulation of CCRs and EPA should defe r the promulgation of such regulations until Congress can review this issue and, if necessary, amend RCRA to expressly authorize EPA’s regulation 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.83

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

- 06300

- 4 

### 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: b. EPA Understates Its Subtitle D Authority.

EPA also offers a selective reading of its own authority under Subtitle D. Perhaps EPA hopes to increase support for a Subtitle C program by creating a sense that even under a Subtitle D or D Prime program, EP A would be utterly powerless or without a regulatory or enforcement role. That, of course, is false. Southern Company does not concede that a Subtitle D program is necessary to ensure safety and environmental protection at Southern Company facilities.
Neve rtheless, as explained below, Southern Company disagrees with EPA’s characterization of its authority under Subtitle D.

i. EPA’s Regulations Provide the Opportunity to Review and Approve State Plans Under Subtitle
D.

EPA does not provide a clear explan ation of its process for reviewing and approving Subtitle D facilities pursuant to Part 256 of its regulations. EPA even states, “EPA has no role in the planning and direct implementation of solid waste programs under RCRA subtitle D.” [Footnote
27: 75 Fed . Reg. 35128, 35136 (June 21, 2010) (emphasis added). ] That statement is incorrect, and the preamble significantly understates EPA’s role under Subtitle D.

Sections 4002 and 4003 of Subtitle D provide federal authority to develop guidelines for state pl ans and impose minimum requirements for EPA to approve those plans. According to EPA’s regulations, to receive EPA’s approval, a state must submit a plan to EPA, and the state’s proposed plan

—

must identify the respective “responsibilities of State, loca l, and regional authorities in the implementation of the State plan”; [Footnote 28: 40 C.F.R. 256.01(b)(1).]

must “contain requirements that all solid waste . . . shall be (i) utilized for resource recovery or (ii) disposed of in sanitary landfills . . . or otherwise disposed of in an environmentally sound manner”; [Footnote 29: 256.01(b)(2).]84

must require the closing of open dumps, i.e., a facility that does not meet Subtitle D standards, and “provide for the establishment of such State regulatory power s as may be necessary to implement the plan”; [Footnote 30: 256.01(b)(3), (4).] and

must “provide for resource conservation or recovery and for the disposal of solid waste in sanitary landfills or for any combination of practices so as may be necessary t o use or dispose of such waste in a manner that is environmentally sound.” [Footnote 31: 256.01(b)(6).] EPA’s regulations also establish the scope of a state solid waste management plan and a schedule for EPA review. [Footnote 32: 256.02, .03.] EPA may dis approve a plan if EPA finds it does not
meet the above

- noted requirements and for certain other reasons. [Footnote 33: 256.04.] States must demonstrate that they have adequate authority to enforce solid waste standards; they must provide for detection of a dverse effects from solid waste facilities; they must use a permitting process that “ensures that the establishment of new open dumps is prohibited”; and they must provide “administrative and judicial enforcement capabilities . . . as necessary to ensure

c ompliance.”[Footnote 34: 256.21.] The regulations continue with a mixture of requirements and recommendations with respect to closing open dumps, addressing inactive facilities, resource conservation and recovery programs, facility planning and implementat ion, public participation, and other issues. [Footnote 35: See generally 40 C.F.R. Part 256, Subparts C, D, E, F, and G. ] Further, as EPA has acknowledged, [Footnote 36: 75 Fed. Reg. at 35211.] the authority provided
under RCRA Section 7003 to take action in the event of “an imminent and substantial endangerment to health or the environment” does not depend on a Subtitle C program. [Footnote 37: 42 U.S.C. 6973(a).]

Thus, EPA’s statement that “EPA has no role in the planning and direct implementation of s olid waste programs under RCRA subtitle D” is misleading and incorrect. EPA’s half

- hearted characterization of its own role and authority under Subtitle D significantly understates the tools EPA may apply when approving a statedeveloped Subtitle D plan.

To the extent states submit plans, EPA

— contrary to its assertions in the preamble

—has a direct role in evaluating the adequacy of those plans. In light of EPA’s statutory and regulatory authority, EPA makes unsupported assumptions about whether states woul d prepare and submit CCB management plans for EPA approval under federal CCB standards issued under Subtitle D without providing additional analysis. That analysis should take into consideration the states’ responses to other examples of Subtitle D regulat ions and guidance in the past as well as the likelihood of even greater state participation with respect to CCBs in light of the states’ traditional role in regulating the delivery of electricity and other public utilities. [Footnote 38: As noted above, se e Part II.A.2.a supra, EPA may not logically draw inferences with respect to the states’ likely response to federal CCB standards and guidance from the status of state programs today, when EPA standards and guidance are not in effect.] EPA may also use the incentives provided in Subtitle D, such as technical and financial assistance, to encourage state participation. Absent a rigorous analysis along those lines, it is arbitrary and capricious for EPA to issue Subtitle C standards based on an unsupported ass umption that states would not submit Subtitle D plans for approval. Further, even if EPA finds that state participation may be anything other than universal, EPA must explain why it would refuse to provide an opportunity to submit a CCB plan for those stat es that wish to do so.85

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

ii. EPA’s Assumption that the Regulated Community W ould Violate the Law Is Unsupported
and Unfounded.

EPA has also observed that “even in the absence of a state program, CCR landfills and CCR surface impoundments would be required to meet the proposed federal minimum criteria as set out in 40 C.F.R. part 257, subpart D.” [Footnote 39: 75 Fed. Reg. 35128, 35211 (June 21, 2010) (emphasis added).] EPA has not explained why it may assume significant noncompliance with federal standards that would be, according to EPA, mandatory.

Southern Company makes it a top priority to keep its facilities safe and in compliance with all applicable laws and regulations. Southern Company takes strong exception to the notion that we or other utilities would fail to comply with standards that become effective pursuant to Subt itle D. In any event, to the extent EPA makes such assumptions, EPA has failed to explain them or provide support in the administrative record

.

Response: The Agency has revised its compliance estimate to state that all CCR units would be in compliance wit h the rule. The commenter is also referred to Unit XII and the supporting document for this section that addresses the cost benefit analysis.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06352

- 13 

### Organization 1 

### : Dayton Power & Light Company (DP&L) 

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



### Comment Excerpt Text: One of the concerns USEPA has expressed with implementing a subtitle D option for regulat ing CCRs is the lack of federal oversight authority. Under RCRA subtitle C, authority for administering the regulations is granted to states while USEPA retains the capability to step in and take over the program from the state should circumstances warrant it. In its comments, USWAG presents a strong basis as to why the agency does in fact, have the authority to assert jurisdiction over CCRs under subtitle D in combination with delegating authority to the states. Without reiterating the legal foundation for USWAG's position here, DP&L simply believes that the perceived lack of federal regulatory oversight capability is no basis upon which to impose a subtitle C regulatory scheme on CCRs requiring drastic modifications to the way CCRs are8 6

managed, causing sig nificant disruption to their beneficial use, resulting in major capital and operating expenditures by utilities for marginal environmental improvement

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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06357

- 4 

### Organization 1 

### : Kansas City Power & Light Company 

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



### Comment Excerpt Text: The Rulemaking Record Supports the Subtitle D Option

At the outset, it is important to state that the development of Subtitle D non

- hazardous waste regulations for CCRs is fully consistent with the rulemaking record. The development of Subtitle D regulations would be the appropriate outgrowth of EPA’s two Reports t o Congress and two Regulatory Determinations under the Bevill Amendment declaring that CCRs do not warrant hazardous waste regulation under RCRA Subtitle C, but rather should remain primarily the province of state regulatory programs under RCRA Subtitle D.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 16 

### 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: The RCRA Subtitle D framework provides the appropriate legal structure under which EPA may develop federal regulations for CCR.

Response: The Agency acknowledges and appreciates the comm ent. The commenter is
referred to Unit IV and Unit V of today’s preamble for a discussion on our decision to regulate
CCR under subtitle D of RCRA.87



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 20 

### 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: 4.2.4 

### Comment Excerpt Text: As indicated by the written comments on the Proposed Rule submitted to EPA by states such as Indiana and Kentucky, EPA is encouraged, to the extent it deems necessary, to request from Congress the statutory authority necessary to propose non

- hazardous regulations under Subtitle D that are implemented by the states and provide federa l enforceability. If such a mechanism is not utilized by EPA for states to be able to implement these rules, the electric utility industry and CCR beneficial users will be faced with having to comply with duplicative and potentially
inconsistent state and federal regulations, an undue regulatory burden with no corresponding
environmental benefit.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 22 

### 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: 4.2.4 

### Comment Excerpt Text: Duke Energy concurs with USWAG’s legal analysis that EPA already has t he authority to promulgate rules under RCRA §§ 4005(c) and 4010(c) that may be administered through state permitting programs and be subject to direct federal enforcement in states that fail to adopt and adequately administer the federal rules. Specificall y, EPA can utilize a combination of the RCRA statutory authorities it employed in promulgating federally enforceable Subtitle D rules for municipal solid waste land disposal facilities (“MSWLFs”) and non

- MSWLFs under 40 C.F.R. §§ 257 and 258 to establish c ontrols for CCR disposal units.

This approach provides EPA with the enforcement authority it desires under a Subtitle D CCR regulatory program, while also giving the states the opportunity to take a prominent role in the administration of any Subtitle D C CR program. Again, this would prevent the duplication of potentially conflicting federal and state requirements. If, for whatever reason, EPA does not agree that the use of RCRA §§ 4005(c) and 4010(c) are legally defensible, it can and should seek

congress ional authorization to develop such a rule for managing CCR under a state authorized88

program similar to that developed for MSWLFs under 40 C.F.R. § 258, rather than promulgate a CCR rule that does not provide for state implementation.

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



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06400

- 2 

### 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 .1.6 11.3 

### Comment Excerpt Text: We are surprised, however, by the false dichotomy posed in EPA’s proposal of two options to regulate CCRs when disposed: either as a Resource Conservation and Recovery Act (RCRA) Subtitle C regulated hazardous waste or as a RCRA Subtitle D nonhazardous waste subject only to citizen suit enforcement, not permitting, at disposal facilities. RCRA does not compel this legal interpretation of EPA’s authority. Nor is it wise to view RCRA through this narrow lens,
because it create s an artificial constraint on EPA’s ability to fulfill its mission under RCRA to do what is necessary to protect human health and the environment. By taking the position that EPA’s authority under RCRA goes to only two relatively small waste streams, EPA a bdicates responsibility to assure protection in the handling of the vast majority of wastes generated in the
U.S.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for t he Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06400

- 3 

### Organization 1 

### : Waste Management (WM) 

### Commenter 1 : Susan Briggum Commenter Type: Other C ompany Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Applicability of RCRA Subtitle D authority to CCRs: The association of the public utilities, the89

Utility Solid Wastes Activities Group (USWAG), has made a compelling argument that RCRA Section 4010 fully authorizes EPA to determine that CCRs, like municipa l solid waste, should be subject to uniform national criteria establishing a detailed regulatory program states will implement through issuance of permits. [Footnote 1: See Jim Roewer, USWAG, “Comments of the Utilities Solid Waste Activities Group” (given before U.S. EPA in public meeting in Pittsburgh, September 21, 2010).] The legal argument made by USWAG is attached and incorporated by reference in our comments. We believe USWAG’s reading of RCRA authority is correct and should be employed by EPA to crea te a final rule implementing a CCR disposal

program.

The RCRA Subtitle D framework has been created to afford EPA broad authority to protect human health and the environment from impacts from waste handling and disposal. EPA has overall authority under R CRA Sections 4003 and 4004 to require that solid waste be disposed in sanitary landfills, not open dumps. Sanitary landfills are not limited to municipal solid waste, but are defined simply as landfills that provide "there is no reasonable probability of a dverse effects on health or the environment from disposal of solid waste at such facility." RCRA 4004(a). EPA can create classifications of types of sanitary landfills (Section 4004(a)), and thus could create new standards tailored for coal waste or apply the current Part 258 standards (modified, as needed, to address the specific characteristics of CCRs).

Under RCRA Section 4010(c), EPA was required to promulgate criteria including groundwater monitoring, location standards and corrective action for facil ities that "may receive hazardous household wastes or hazardous wastes from small quantity generators" (emphasis added). Under Section 4005 (c), EPA may use the authorities of sections 3007 and 3008 to enforce the open dumping prohibition directly against facilities that "may handle hazardous household waste or hazardous wastes from small quantity generators."

Case law and the legislative history of Section 4010 make clear than EPA’s authority is broadly construed. In the 1993 case Sierra Club v. EPA, 992 F. 2d 337 (DC Cir. 1993), http://bulk.resource.org/courts.gov/c/F2/992/992.F2d.337.92

- 1005.92

- 1003.html, the Court affirmed EPA’s broad authority:

Section 4010(c) of RCRA requires the Agency, by March 31, 1988, to promulgate revisions to
the criteria esta blished for Subtitle D facilities "that may receive hazardous household wastes or hazardous wastes from small quantity generators." 42 U.S.C. § 6949a(c). This category of facilities includes not only municipal solid waste landfills ("MSWLFs"), but also ind ustrial landfills, surface impoundments, land application units, waste piles, and construction/demolition waste landfills. See 56 Fed.Reg. 50,999 (1991). . . . The Agency does not contend that RCRA § 4010(c) applies only to MSWLFs. On the contrary, in the preamble to the proposed rule, the Agency acknowledged that the "mandated scope includes all MSWLFs, which may receive [hazardous household waste] and [small quantity generator] hazardous waste, and some industrial solid waste disposal facilities and certa in other Subtitle D facilities, which may receive [small quantity generator] hazardous waste." 53 Fed.Reg. 33,322 (1988). The Agency stated, however, that it had "obtained extensive information on only the characteristics of MSWLFs," and that "[n]either EP A nor the States have comparable information on industrial solid waste disposal facilities at this time." Id. It therefore decided to undertake the revisions to the RCRA90

criteria in "phases," addressing MSWLFs in the present rule and other Subtitle D facil ities "at such time as EPA has adequate data on which to base its decision." Id.

The Agency acknowledged that its 4010 obligation went beyond MSWLFs: “Far from claiming that its actions are complete, the Agency explicitly states its intention to issue rev ised criteria for

non

- municipal facilities when it has the data necessary to do so.” Indeed, the Circuit Court invited the Sierra Club to sue EPA in district court to fulfill its obligation to regulate all of the

non

- municipal facilities for which the Agen cy has jurisdiction under 4010. Absent regulations requiring the kinds of waste screening and facility monitoring set forth in, for example, Part 258 standards, EPA has no assurance that CCR units might not contain some measure of hazardous waste. The Agen cy thus has authority to promulgate criteria to provide that assurance and to add the safeguards required of 4010 facilities: groundwater monitoring, location standards and
corrective action.

The legislative history of Section 4010 is consistent with the Court’s expansive determination. The Conference Report for the 1984 amendments to RCRA (HR 2867 as enrolled and signed, p. 116) indicates that the Conference was viewing 4010 broadly: "Subtitle D facilities are the recipients of unknown quantities of hazar dous waste and other dangerous materials resulting from the disposal of household waste, small quantity generator wastes and illegal dumping." The Senate Report for the bill (S. Rept. 98

- 248 regarding S. 757, pp. 49

- 50) goes further: "Substantial quantitie s of material of a hazardous nature finds its way into subtitle D disposal facilities (i.e., all those not required to have a permit under subtitle C)." Mentioned are not only small quantity generators and household hazardous waste, but additional material s: "Because of the currently inadequate procedures for identifying, listing, and delisting hazardous wastes, many troublesome materials currently unregulated under subtitle C will go to subtitle D facilities. These include
infectious wastes and wastes deli sted through marginal neutralization of their corrosivity
characteristic."

Congress’s initial focus on municipal waste landfills reflected a sense of priority but not exclusion: "The impetus for requiring these revisions is primarily the concern for pote ntial disposal of hazardous materials with nonhazardous wastes. Therefore, in revising the criteria the Agency should focus initially on municipal landfills and subtitle D surface impoundments where this is most likely to occur." (S. Rept. 98, p. 49, empha sis added). Note as well that even the initial focus includes both municipal landfills (which EPA addressed in Part 258) and Subtitle D surface impoundments, which may well extend beyond municipal impoundments to include other industrial impoundments that EPA is only now beginning to address.

As the Senate report indicated (p. 50), Subtitle D “provides the Act’s only regulatory framework for the environmentally sound disposal of solid waste at landfills and impoundments not subject to subtitle C permits. T he purpose of these amendments is to strengthen State and Federal oversight of subtitle D facilities, particularly those which might receive hazardous wastes from small quantity generators or in household wastes. These subtitle D improvements require actio n at both the Federal and the State level.” (emphasis added).

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for91

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



### 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 2.1.6 7.3.3 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 technical unit design and groundwater monitoring requirements tha t 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 huma n 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 mil lion 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, an d 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 rigo r 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 f or 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 regulat ions 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 assure those standards remain in force for the life of a facilit y’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.

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 for92

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundme nts. 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

- 29 

### 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: 4.5 2.1.6 

### Comment Excerpt Text: In section I.D., p. 35136, Regulation of solid wastes under RCRA Subtitle D, the legal analysis claims that EPA does not have authority to establish nationwide standards for non

- munic ipal solid wastes. It can be noted that States have generally adopted, as a minimum, the part 258 rules and incorporated them into their previously established programs. If EPA feels that it lacks authority to implement such an approach, there are a couple of tactics that could be used. One is to seek congressional authority for the approach. The other is to draft a rule similar to s. 40 CFR 761.77, TSCA coordinated approval, as a stopgap until EPA seeks and obtains federal authority to authorize State prog rams to regulate CCR 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 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

- 06 40

- 06541

- 2 

### Organization 1 

### : Large Public Power Council (LPPC) 

### Commenter 1 : Brian H. Moeck, LPPC Environmental Task Force Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Exce rpt Text: • EPA’s concerns about the Subtitle D approach are unfounded Subtitle D of RCRA reflects the Congressional judgment that States play an important role in overseeing solid waste management activities and ensuring that human health and the environment are adequately protected. Congress thus crafted a statutory scheme that EPA has succinctly and accurately summarized as93

follows:

Subtitle D of RCRA establishes a framework for Federal, State, and local government cooperation in controlling the management of nonhazardous solid waste. The federal role in this arrangement is to establish the overall regulatory direction, by providing minimum nationwide standards for protecting human health and the environment, and to provid[e] technical assistance to states for planning and developing their own environmentally sound waste management practices. The actual planning and direct implementation of solid waste programs under RCRA Subtitle D, however, remains a state and local function, and the act authori zes States to devise programs to deal with State

- specific conditions and needs. Id. at 35136.

EPA states that in addition to assessing “the extent of the risks posed by the current management” of CCRs, id. at 35156, “[a]n equally significant component of the overall picture, if not more so, relates to how effectively state regulatory programs address the risks associated with improper management of this material.” Id. at 35157 (emphasis added). EPA further
indicates that because it “continues to lack subst antial details regarding the full extent of state regulatory authority over these materials, and the manner in which states have in practice, implemented this oversight. . .the Agency is reticent to establish a regulatory program without any federal oversi ght.” Id.

EPA’s concern regarding the quality and administration of State programs is understandable, but Congress has already made the clear policy decision that the States are important partners under Subtitle D, and that they should have the primary ov ersight and enforcement responsibility for ensuring the safety and health of their own citizenry. If EPA is concerned about that allocation of responsibilities, or with the adequacy of the States’ efforts in protecting human health or the environment, it s hould address those concerns with Congress, rather than arrogating the States’ assigned statutory role.

LPPC also believes that EPA’s concerns about the adequacy of existing State programs are unfounded, as they are based on incomplete and, more important , backward

- looking information. EPA essentially concludes that “even though overall industry practices appear to be improving,” id., the fact that there have been incidents of “proven damages” to groundwater and surface water under existing State programs must mean that those programs are necessarily inadequate. EPA states that it will therefore continue “to evaluate the overall adequacy of state regulatory programs” by considering “how state regulatory programs have, in practice, evaluated and imposed requ irements to address” a list of eleven factors enumerated in the preamble. Id.

But that inquiry fails to take into account the critical fact that those programs were developed and implemented by the States in the absence of national criteria under Subtitle D. Indeed, the whole purpose of the Subtitle D co

- proposal would be to establish minimum technical standards that would be prospectively adopted by the States and incorporated into new or existing regulatory programs. EPA itself makes this very point, but fails to appreciate its significance:

EPA recognizes that many of the states have regulatory programs in place, albeit with varying requirements, for the disposal of CCRs, and that industry practices have been improving. The RCRA subtitle D approach woul d complement existing state programs and practices by filling in94

gaps, and set forth criteria for disposing of CCRs to meet the national minimum standards that are designed to address key risks identified in damage cases and the risk assessment

– including the risk of surface impoundment failure, which has been identified as a concern appropriate for control. Id. at 35159 (emphasis added).

LPPC respectfully submits that EPA’s assessment of the Subtitle D co

- proposal should be
forward

- looking, and should be based on the assumption that States will faithfully execute their responsibilities under the cooperative statutory framework established by Congress. EPA should assume that States will adopt, implement, and enforce in a timely manner the performance
stand ards of any national criteria that are issued by EPA under Subtitle D, and should allow the States sufficient time to carry out those responsibilities. If EPA were later to determine that the States’ implementation efforts were inadequate, EPA could at tha t time reevaluate whether regulation of CCRs under Subtitle C would be necessary to protect 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 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 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

- 06864

- 2 

### 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: 7.4.2 

### 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 within 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 EPA 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. Additionally, 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 obvious reason for this is that a on e 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 other variables that need to be c onsidered. 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:95

1. Assure that all rules are based on sound engineering, science and economic principles.

2. Take a science

- based approach.

3. Apply equivalent standards for equivalent threats.

4. Following a risk

- based approach.

5. Establishing a performance based approach.

6. Do not over or under regula te.

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 equivalencies rather than meeting speci fic 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 opportunities.

12. Consider resou rce 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 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 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

- 06867

- 9 

### Organization 1 

### : Manufacture Alabama 

### Commenter 1 : Blake Hardwich on behalf of Mike Conlon Commenter Type: Trade Association
Classification: Substantive96

Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 9.7.7 

### Comment Excerpt Text: The reason some states have not implemented CCB pro grams to EPA's liking before now is not, as EPA suggests, because of some lack of competence or ability on the part of the states. Most states have robust Subtitle C and D programs in place today, and those programs include essentially the same components that would be implemented under a CCB disposal program. Rather, the states have not been required or even encouraged to regulate CCBs because of EPA's own failure to issue federal standards under Subtitle D, despite Congress having provided EPA the explici t authority to do so some thirty years ago through the Bevill amendment, and despite EPA's own determinations in 1993 and 2000 that Subtitle D regulation was warranted. To the extent EPA regards the current condition of state CCB regulation as a problem, E PA has only itself to blame. For EPA to use that situation as a basis to simultaneously criticize state agencies and seek greater power for itself is an insult to the states and to principles of federalism.

Response: The Agency acknowledges the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06987

- 18 

### Organization 1 

### : Entergy Services, Inc. 

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



### Comment Excerpt Text: Subtitle C Regulation is Unnecessary Since EPA Has Enforcement Authority Under
Subtitle D

One of EPA’s stated concerns with the Subtitle D option is that it would not allow EPA to require the states to implement the Subtitle D CCR controls t hrough state permits, approve the adequacy of the state programs, or enforce the regulations against non

- compliant facilities. This concern is mistaken. EPA is underutilizing the full scope of its authority under Subtitle D by looking solely to RCRA Sectio n 4004 for purposes of developing Subtitle D controls for CCRs. EPA can utilize the same combination of RCRA statutory authorities

– i.e., RCRA Sections 4010(c) and 4005(c)

– for establishing controls for CCR disposal units that it employed in promulgating federally enforceable Subtitle D rules for municipal solid waste landfills (“MSWLFs”) and for non

- MSWLFs that receive household hazardous waste and conditionally exempt small quantity generator waste under 40 C.F.R. Parts 257 and 258.

The combination of these two Subtitle D provisions enables EPA to promulgate nonhazardous waste rules for CCRs that can be directly administered through state permitting programs and backed up by direct EPA enforcement powers in those states that fail to adequately implement97

the federal rules. Such an approach offers a win

- win for EPA: it provides the Agency with the enforcement authority it desires under a Subtitle D CCR regulatory program while enabling the states to have a prominent role in the administration of any Subtit le D CCR rules, thereby preventing the duplication of federal and state controls in keeping with the intent of 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.

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

- 07001

- 3 

### Organization 1 

### : Vectren Corporation 

### Com menter 1 : Angila M. Reinerford Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Vectren believes that the promulgation of a regulatory program under R CRA Subtitle D is entirely appropriate and extensively supported in the record given EPA's two previous Reports to Congress and final Regulatory Determinations [Footnote 3: 58 Fed Reg. 42466 (Aug. 9,1993); 65 Fed. Reg. 32214 (May 22,2000).] declaring that CCRs do not warrant a hazardous waste designation under RCRA Subtitle C.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07680

- 2 

### Organization 1 

### : Honigman Miller Schwartz and Cohn LLP on behalf of Lansing Board of Water and Light (LBWL) and Michigan State University (MSU) 

### Commenter 1 : Jeffrey L. Woolstrum Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.1 

### Comment Excerpt Text: RCRA's existing statutory structure is not appropriate for regulating CCRs at the federal level, and EPA should defer any action on the proposal unless and until Congress amends RCRA to provide specific authorit y for EPA to regulate CCR disposal.98

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08850

- 2 

### Organization 1 

### : Lansing Board of Water & Light (BWL) 

### Commenter 1 : Lansing Board of Water & Light (BWL) Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.1 

### Comment Excerpt Text: RCRA's existing statutory structure is not appropriate for regulating CCRs at the federal level and EPA should defer any action unless and until Congress amends RCRA to provide specific authority for EPA to regulate CCR disposal.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 3 

### Organization 1 

### : Prairie State Generating Company, LLC (PSGC) 

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



### Comment Excerpt Text: While PSGC has significant concerns with the Subtitle D option, as discussed below, there is no question that RCRA's Subtitle D framework provides the appropriate legal structure under which EPA may develop federal regulations for CCRs. Unde r the proposed Subtitle D option, EPA would not reverse its final 2000 Regulatory Determination for CCRs.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 82 

### Organization 1 

### : Prairie State Generating Company, LLC (PSGC) 

### Commenter 1 : Keith Bastian Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text:99

PSGC recommends that EPA request specific legislative authorization to develop federally enforceable Subtitle D regulations. If EPA declines this approach, PSGC supports the development of Subtitle D non

- hazardous waste regulations for CCRs under the proposed
Subtitle D Prime option with the modifications discussed above. After addressing PSGC's comments, PSGC requests that EPA re

- propose the Subtitle D Prime option and allow the public to comment on the final proposal.

Response: The Agency acknowledges and appreciates the co mment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09281

- 2 

### Organization 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: A. Subtitle D authorizes imposition of the substantive controls commonly accepted for providing environmental protection relating to disposal of CCR in landfills and surface impoundments.

Under Subtitle D, EPA has proposed and can impose su bstantive controls that can successfully prevent damage to the environment from CCR disposal in landfills and surface impoundments. Substantive controls include location standards, design standards, groundwater monitoring, and ultimately liners and leachat e collection systems. Upgrades such as liners for existing units, primarily surface impoundments, address the most significant environmental problems, which are frequently associated with older units not designed to newer state

- of

- the

- art standards.

Respon se: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09530

- 11 

### Organization 1 

### : PSEG Power LLC and Public Service Electric and Gas 

### Commenter 1 : Eric B. Svenson Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.4 

### Comment Excerpt Text: XII. EPA Should Develop Subtitle D Rules With Direct EPA Enforcement Authority

EPA has expressed concern that the Sub title D option does not allow EPA to require the states to implement the Subtitle D CCR controls through state permitting programs, approve the adequacy100

of the state programs, or enforce the regulati ons against non compliant facilities [75 Fed. Reg. at
35 194]. EPA has made this determination based on its authority under RCRA section 4004 for purposes of developing Subtitle D controls for CCRs [75 Fed. Reg. at 35193

- 35194].

PSEG believes Sections 4010(c) and 4005(c) of RCRA could provide the basis for EPA to promulgate a Subtitle D option for CCR’s permitted by states, but enforced at a federal level. This approach would provide the Agency with enforcemen t authority under a Subtitle D program, while maintaining a state permitting program, thereby preventin g the duplication of
federal and state controls that Bevill Amend ment directs EPA to avoid.

In this regard EPA could evaluate existing state controls to validate their ability to adequately permit CCR disposal units (as is the case with municipal solid waste landfills under 40 C.F.R. Part 258) and administer controls, where federal oversight can apply to ensure compliance with the applicable regulatory requirements. Such an approach would allow for the necessary state involvement in administrating Subtit le D and ensure appropriate regulatory controls available via federal oversight.

While PSEG believes EPA has the authority to enforce Subtitle D regulations, if EPA believes that it does not have the appropriate authority, then EPA could consider a legis lative solution and ask for enforcement authority under Subtitle D through a statutory adjustment. At a minimum, PSEG encourages the Agency to pursue this legislative path to obtain the necessary authority to
enforce under Subtitle D if EPA believes this i s the only impediment to a Subtitle D program for
CCR’s.

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



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09633

- 9 

### Organization 1 

### : Waterkeeper Alliance 

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



### Comment Excerpt Text: A. Subtitle D Is Not Intended To Regulate Hazardous Waste Such As Coal Ash

Subtitle D of RCRA was created by Congress to regulate municipal solid waste, or garbage, as
well as certain no n

- hazardous industrial wastes. The only hazardous wastes regulated under Subtitle D are household hazardous waste and hazardous waste from conditionally exempt small quantity generators (generating 100 kilograms or less per month of hazardous waste) [Footn ote 40: EPA Region 10: the Pacific Northwest, Managing Non

- Hazardous Municipal and Solid Waste (RCRA), available at: http://yosemite.epa.gov/R10/OWCM.NSF/rcra/nonhaz_waste]

-- these exceptions were clearly made due to the relatively low volume of hazardous waste101

produced. In comparison, approximately 130 million tons of coal ash is generated by power companies each year, with almost 60 percent (or 70 million tons) of that destined for disposal in landfills or surface impoundments. [Footnote 41: 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] EPA cannot reasonab ly conclude that the massive amounts of coal ash being produced each year should be analogized to household and small generator waste for the purposes of regulating this hazardous waste under Subtitle D.

Moreover, examination of the non

- hazardous industr ial wastes regulated under Subtitle D shows that coal ash does not belong here either. This category includes construction and demolition materials (e.g. concrete, wood, bricks, glass, and plastics) and medical waste (e.g. discarded surgical gloves and ins truments, culture dishes and swabs, and removed body organs). [Footnote 42: EPA website, Industrial Waste, available at: http://www.epa.gov/epawaste/nonhaz/industrial/index.htm] Although so

- called “special wastes,” which currently include coal ash, are als o contained within this class of non

- hazardous industrial waste, the data establishing that coal ash is indeed hazardous shows that it no longer belongs there. “Special wastes” were placed in a separate category by Congress and by EPA because “at the time, [they] were believed to possess less risk to human health and the environment than the wastes being identified for regulation as hazardous waste.” [Footnote 43: Id] Therefore, hazardous waste requirements for “special wastes” were deferred “...until furth er study and assessment could be completed to determine their risk to human health and the environment.” [Footnote 44: Id] Since “further study and assessment” have now determined that coal ash poses serious risks to human health and the environment, and e xhibits a characteristic (toxicity) of hazardous waste, coal ash plainly belongs 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10019

- 6 

### Organization 1 

### : Spalding & Hilmes, PC 

### Commenter 1 : Rosemary G. Spalding and Kathryn A. Watson, on be half of Springer family et
al Commenter Type: Law Firm
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.4 

### Comment Excerpt Text: EPA's other proposed approach is inadequate to fill the gaps and relies too heavily on states.
Subtitle D of RCRA establishes a framework for Federal, State, and local government cooperation in controlling the management of nonhazardous solid waste. The federal role is to provide minimum nationwide standards for protecting human health and the environment, and to providing technical assistance to states for planning and developing their own waste management practices. The actual planning and direct implementation of solid waste programs under RCRA102

subtitle D remai ns a state and local function, and the act authorizes States to devise programs to
deal with State

- specific conditions and needs. In contrast to subtitle C, RCRA subtitle D requirements relate only to the disposal of the solid waste, and EPA does not have the authority to establish requirements governing the generation, transportation, storage, or treatment of such wastes prior to disposal. Moreover, EPA would not have administrative enforcement authority to enforce any RCRA subtitle D criteria for CCR faci lities, authority to require states to issue permits for them or oversee those permits, nor authority for EPA to determine whether any state permitting program for CCR facilities is adequate. Subtitle D of RCRA also provides less extensive authority to est ablish requirements relating to the cleanup (or corrective action) and financial assurance at solid waste facilities. Under subtitle D, EPA would establish national criteria for location standards, composite liner requirements (new landfills and surface
im poundments would require composite liners; existing surface impoundments without liners would have to retrofit within five years, or cease receiving CCRs and close); groundwater monitoring and corrective action standards for releases from the unit; closure and post

- closure care requirements; and requirements to address the stability of surface impoundments. States or citizens could enforce the requirements under RCRA citizen suit authority; the states could also enforce any state regulation under their inde pendent state 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 o f 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: TRANS

- DEN

- 0039

- 2 

### Orga nization 1 

### : Utility Solid Waste Activities Group 

### Commenter 1 : Jim Roewer Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.5 

### Comment Excerpt Text: One of EPA's stated concerns with the Subtitle D option is its perceived lack of federal enforceability under this approach. However, EPA does have the authority to issue federally enforceable Subtitle D rules for CCRs; it simply is not using that authorit y. I refer EPA to the same RCRA provisions under which it issued federally enforceable Subtitle D rules for municipal solid waste landfills. The first provision, Section 4010(c), directs EPA to develop Subtitle standards for facilities that may or may pot entially receive household or conditionally exempt small quantity generator waste. A related provision, Section 4005(c), authorizes EPA to enforce these Subtitle D regulations in states that fail to adopt and implement the federal rules. CCR disposal fac ilities fall within the scope of EPA's authority under these provisions, and without any question may or have the potential to receive these wastes.103

The development of Subtitle D regulations under 4010 of RCRA offers a win

- win for EPA and the public. Whil e this approach would likely require supplemental proposals, it will assure that the agency gets it right, providing the agency with the enforcement authority it desires while avoiding the unnecessary and adverse implications of Subtitle C. There is simpl y no reason for EPA to pursue the Subtitle C approach when it can develop federally enforceable rules under the less controversial, yet equally protective, Subtitle D nonhazardous 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 landfills and surface impoundments. 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.

Section 2.1.3

- 2000 Regulatory Determination (35136

- 35137) Total Number of Submissions: 70 Total Number of Comments: 98



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 02196

- 4 

### Organization 1 

### : Commenter 1 : Nick Mankle Commenter Type: Private Citizen
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.2 

### Comment Excerpt Text: I agree with the E PA’s final 2000 Regulatory Determination that regulating CCRs under RCRA’s hazardous waste program is unwarranted, an I urge EPA to reject any option that would regulate CCRs in this manner.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 04001

- 11 

### Organization 1 

### : Coresco, LLC 

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



### Comment Excerpt Text: 5. The Rule and the 2000 Regulatory Determination fail to provide sufficient analysis about distinctions among the regulation of FFCs established in the 1993 Regulatory Determination104

The Rule recogniz es that the Consent Decree entered into by EPA on June 30, 1992 created two categories of fossil fuel combustion (FFC) wastes. The Regulatory Determination published by EPA on August 8, 1993 concluded that regulation under Subtitle C of the RCRA was not

wa rranted for fly ash, bottom ash, boiler slag, and flue gas emission control waste from the combustion of coal by electric utilities and independent commercial power production (known as the first category FFC wastes), Any type of federal regulation of firs t category of FFC wastes is contrary to the 1993 Regulatory Determination, The analysis set forth in the 2000 Regulatory Determination as the basis for federal regulation of all CCRs is insufficient. Further, for the reasons stated above in Section 4, even if the EPA has legitimate reasons to conclude that all CCRs should be subject to federal regulation, regulation under Subtitle C is not warranted,

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 04041

- 4 

### Organization 1 

### : Environment Maryland Research & Policy Center 

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



### Comment Excerpt T ext: On March 9, 2009, the EPA announced that it would review procedures for the management of coal ash. The EPA’s announcement was prompted by the growing concern over the risks to public health and the environment posed by coal ash, a concern fueled by the spill of a billion gallons of toxic coal ash from a coal ash pond in Tennessee that caused environmental damage and continues to pose significant human health risks. Similar public health risks and environmental degradation exist for other methods of c oal ash disposal such as in landfills, mine reclamation or as structural fill for development. Unfortunately, in 2000, EPA had confirmed a
20

- year position that coal ash regulation under Subtitle C of RCRA was not warranted primarily because existing solid waste management and siting practices were adequate to address coal ash disposal and the impacts of hazardous waste management requirements would be an excessive cost on the utility industry. EPA’s analysis was incorrect then and, in light of the known ri sks of exposure to coal ash, continued reliance on this analysis that would result in further delay in the enactment of comprehensive, enforceable standards for the management of coal ash would be
unconscionable.

Response: The Agency acknowledges and app reciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 04138

- 3 

### Organization 1 

### : Kentucky Department for Environmental Protection 

### Commenter 1 : R. Bruce Scott105

Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: EPA has previously declared in its Report to Congress in 1988 and 1999 that coal combustion wastes are high volume and low hazard and do not warrant regulation under Subtitle C. E PA regulatory findings published in 1993 and 2000 indicate that these wastes “do not warrant regulation under Subtitle C.” However, EPA’s proposed rule is not consistent with those previous conclusions and the state does not see a technical basis for EPA’s change of course in this proposed rule.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06011

- 5 

### 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:



### Comment Excerpt Text: EPA's May 2000 determination that coal ash is not hazardous was made following several years of review and analyses and we believe good science and reasoning went into that decision to list
CCRs as non

- hazardous waste. While some env ironmental problems may occur if these wastes are not properly managed, EPA noted in the May 2000 Bevill determination that the utility industry had made significant improvement in its waste management practices, including the use of liners and groundwater monitoring at CCR landfills.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06011

- 6 

### 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:106

Other Se ctions: 7.1.1 

### Comment Excerpt Text:

Further reviews were then conducted to determine if national standards need to be set under Subtitle D of RCRA for the disposal of non

- hazardous solid wastes. There were a series of discussions between states, OSM and E PA concerning the next steps that would be taken pursuant to the regulatory determination. Staff from our Reclamation Division was included in these discussions due to the responsibility we have for regulating coal mining under SMCRA. Representatives from the Solid Waste Division of the North Dakota Department of Health were also involved in these discussions since they have regulated the disposal of CCRs under special waste disposal permits since the mid 1980's.

EPA conducted site reviews of CCR disposal sites in North Dakota and the Department of Health provided data and information to demonstrate that the appropriate environmental protections are being used in North Dakota. The majority of the CCRs disposed of by North Dakota power plants are placed in special waste disposal sites within mined lands that are also permitted by the Health Department's Solid Waste Disposal Division. The CCRs disposed of in mined lands are placed in confined areas that are clearly designated for this use. Site
characterizati on, including geologic and hydrologic data, as well as CCR characterization must be carried out as required by the Department of Health.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06196

- 16 

### 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: 2.1.4 

### Comment Excerpt Text:

The effect of the Bevill Exemption has been to promote the secondary use of CCRs in a totally
uncontrolled manner.

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

- 06248

- 9 

### Organization 1 

### : Lignite Energy Council 

### Commenter 1 : John W. Dwyer Commenter Type: Trade Association
Classification: Substantive Comment Category:107

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
The Bevill Amendment does not Authorize an EPA Reassessment The Bevill Amendment required EPA to conduct a study and present findings to Congress regarding the following factors: (1) the source and volumes of CCR materials generated per year; (2) p resent disposal and utilization practices; (3) potential danger, if any, to human health and the environment from disposal and reuse of such materials; (4) documented cases in which danger to
human health or the environment from surface runoff or leachate has been proved; (5) alternatives to current disposal methods; (6) costs of such alternatives; (7) the impact of those alternatives on the use of coal and other natural resources; and (8) the current and potential
utilization of such materials.11 Within si x months of submitting the study to Congress, the Bevill Amendment also required EPA to decide whether to regulate materials generated from the
combustion of coal.12 While extremely tardy in doing so, the EPA conducted the study and made the required find ings and report to Congress. The EPA determined that the breadth of the coal combustion residuals report was such that it would be difficult to complete the study required under 42 U.S.C. § 6982(n) in time to meet the October 21,1982, statutory deadline.13 Consequently, EPA decided to divide the statutorily

- mandated report to Congress into two phases. The first phase of the report addressed the four large

- volume CCRs generated by coal

- fired electric utilities (including fly ash, bottom ash, boiler slag, an d flue gas desulfurization materials). This report was submitted to Congress on March 8, 1988 (1988 Report). 14 It concluded that the large

- volume coal combustion waste streams generally did not exhibit hazardous characteristics under RCRA.15 Accordingly, EPA determined that it did not intend to regulate those four large

- volume coal combustion waste streams.16 The EPA concluded that Subtitle C was inappropriate to address the problems associated with these wastes and that the site or region specific State a pproach was more appropriate for addressing the limited human health and environmental risks involved with the disposal of [these four large

- volume CCR] wastes.17 This initial report also encouraged the utilization of coal combustion wastes to the

extent t hat such utilization could be done in an environmentally safe manner.18 EPA provided the following reasons for this determination under 42 U.S.C. §§ 6921(b)(3)(A) and 6921(b)(3)(C): “After reviewing industry practices and current State and Federal regula tion, EPA reviewed the alternative scenario of regulating the four large

- volume [CCR] wastes under Subtitle C. First, it was recognized that coal combustion wastes rarely exceed the RCRA characteristics for hazardous waste, and therefore, that most coal co mbustion wastes would not be subject to Subtitle C controls unless they were listed as hazardous wastes. Furthermore, it was noted that even if these wastes were listed as hazardous, and therefore, regulated under Subtitle C, such an approach would be inap propriate for these wastes. A Subtitle C system would require coal combustion units to obtain a Subtitle C permit (which would unnecessarily duplicate existing State requirements) and would establish a series of waste unit design and operating requirements for these wastes, which would generally be in excess of requirements to protect human health and the environment. For example, if such wastes were placed in the Subtitle C universe, all ash disposal units would be required to meet specific liner and monit oring requirements. Since [CCR] sites vary widely in terms of topographical, geological, climatological, and hydrological characteristics (e.g., depth to groundwater, annual rainfall, distance to drinking water sources,108

soil type) and the wastes' potential to leach into the groundwater and travel to exposure points is linked to such factors, it is more appropriate for individual States to have the flexibility necessary to tailor specific controls to the site or region specific risks posed by these wastes.”1 9 The second phase of the report covered all other combustion wastes generated by utilities and

non

- utilities, including the above CCRs when co

- managed with certain low volume wastes. The second phase report was presented to Congress in 2000.20 The report included the required finding under 42 U.S.C. §§ 6921(b)(3)(A) and 6921(b)(3)(C), and determined once again that such CCR wastes are more appropriately regulated under Subtitle D rather than Subtitle C of
RCRA.

Response: The Agency acknowledges and appr eciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 141 

### 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: p. 35192: A. Overview and General Issues
EPA is co

- proposing and is soliciting comment on an approach under which the May 2000 Regulatory Determination would remain in place, and EPA would issue regula tions governing the disposal of CCRs under sections 1008(a), 2002,m4004 and 4005(a) of RCRA (i.e., "Subtitle D" of RCRA).

Kentucky agrees with this approach.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 3 

### 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 Secti ons: 2.1.4 

### Comment Excerpt Text: EPA has previously declared in its Report to Congress in 1988 and 1999 that coal combustion residuals are high volume and low hazard and do not warrant regulation under Subtitle C. EPA regulatory findings published in 1993 and 2000 indicate that these wastes "do not warrant109

regulation under Subtitle C." However, EPA's proposed rule is not consistent with those previous conclusions and the state does not see a technical basis for EPA's change of course in this proposed rule.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06278

- 1 

### Organization 1 

### : Foxwood Hills Resort, Kinston Manor and Villas of Foxwood Hills 

### Commenter 1 : Bryan A. Hamilton Commenter Type: Other Company
Classification: Non

- substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 9.2.5 3 .1.2 

### Comment Excerpt Text: I want to express my opposition on behalf of the owners of Kinston Manor and Villas of Foxwood Hills to EPA's plans to regulate coal ash as hazardous. This issue has been studied by the EPA on four previous occasions. The last t ime was in the year 2000 by the Clinton Administration, when it was determined that states could safely govern coal ash under federal

non

- hazardous rules. Such a regulation would drive the price paid for electricity much higher.
This would be an added burd en to me and to all other electric ratepayers at a time when many of us are struggling with our personal finances.

I would urge the EPA to refrain from imposing this hazardous regulation on coal ash.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 50 

### 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 35148, Column 1, Overview and Summary: "In the May 2000 determination, EPA concluded that disposal of CCRs did not warrant regulation under RCRA subtitle C as a hazardous waste, but did warrant federal regulation as a solid waste under subtitle D of RCRA. However, EPA neve r issued federal regulations under
subtitle D of RCRA for CCRs."110

Before regulating materials under Subtitle C, the department believes that EPA should implement regulation of CCR under Subtitle D, using the regulatory improvements proposed previously. The May 22, 2000, EPA report has a key element on why comments are today being solicited. On pages 32214, 32215, and 32232 of the May 22, 2000 Federal Register, EPA announced that it would promulgate additional regulations for CCR landfills and surface impoun dments under Subtitle D and explain how the rule changes would assist the states in better regulating these units. On page 32215, Column 2, of the May 22, 2000 Federal Register EPA stated, "While these wastes remain exempt from subtitle C, we have further decided to establish national regulations under subtitle D of RCRA (RCRA sections 1008(a) and 4004(a)) for coal combustion wastes that are disposed of in landfills or surface impoundments or used to fill surface or underground mines."

In the decade since that time EPA has not promulgated CCR regulations under Subtitle D. EPA has considered the regulation of CCR three times and failed to promulgate CCR rules Tennessee and other states have filled the regulatory void left by EPA.

Response: The Agency acknow ledges and appreciates the comment. 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. In particular, the commenter is referred to the discussion on state

programs.



### Commen t Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06299

- 2 

### Organization 1 

### : MidAmerican Energy Holdings Company (MidAmerican) 

### Commenter 1 : Cathy S. Woollums Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: CCR Does Not Warrant Hazardous Waste Regulation

The EPA has a long history of assessing the environmental risks posed by CCR. Over a period of nearly 30 years, the EPA has consistently and unequi vocally reported both to the U.S. Congress and the general public that CCR does not exhibit hazardous waste characteristics. In 1976, Congress enacted RCRA to regulate the disposal of a growing volume of municipal and industrial wastes. Members of Congress recognized the public policy implications of this legislation on the nation’s energy independence and expressed concern that RCRA would create an incentive for electric utilities to switch from domestic coal to foreign oil. To address those concerns, Cong ress amended RCRA in 1980 (hereafter “Bevill Amendment”) to single out CCR for special consideration and required the EPA to demonstrate that the regulation of CCR would not discourage its beneficial reuse by imposing unnecessary regulatory costs specifica lly related to disposal. The Bevill Amendment excluded CCR from regulation as a hazardous waste under RCRA Subtitle C and prescribed a series of statutorily defined environmental and economic111

assessments that the EPA was required to undertake prior to regu lating CCR.

Over the course of the next two decades the EPA worked to implement the Bevill Amendment requirements by conducting the statutorily required environmental and economic assessments of CCR. The EPA issued its first reported to Congress in 1998 a nd, utilizing its own, well

established test methodologies, concluded that large volume CCR

– fly ash, bottom ash, boiler slag, and flue gas desulfurization wastes

– did not exhibit hazardous characteristics and should not be regulated as a hazardous waste under Subtitle C. The EPA’s subsequent 1993 Regulatory Determination reaffirmed the determination that large volume CCR was not a hazardous waste. Following the 1993 regulatory determination, the EPA began work on assessing low volume CCR. The EPA reporte d to Congress in 1999 that low volume CCR also did not warrant regulation as a hazardous waste under Subtitle C. The EPA final Regulatory Determination in 2000 confirmed the 1999 assessment. The EPA’s current proposal to regulate CCR as a
hazardous waste u nder RCRA Subtitle C would be contrary to and inconsistent with EPA’s own findings, test methodologies, the law, and the regulatory construct, based on nearly 30 years of assessment and analysis without any additional or scientifically

- based evidence that CCR exhibits hazardous characteristics. EPA should consider regulation of CCR as hazardous only those materials that are hazardous (the exception) rather than regulating all CCR as hazardous (the rule).

Response: The Agency acknowledges and appreciates th e comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 35 

### 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 Con text Assigned/Due:
Other Sections: 2.1.4 3.1.2 

### Comment Excerpt Text: A. Subtitle C Regulation Is Technically Not Applicable to CCBs and Would Be Prohibitively Expensive and Counterproductive, Without Commensurate Human Health or Environmental
Benefits.

EPA seeks comment on regulation of CCBs destined for disposal in landfills or received in surface impoundments as listed “special wastes” under EPA’s Subtitle C proposal. This proposal is both technically and legally flawed.

In accordance with 40 C.F.R. 261.11(a)(3), EPA may list a waste as hazardous if, after evaluating ten individual criteria, EPA concludes that “the waste is capable of posing a substantial present or potential hazard to human health or the environment when improperly112

treated, stored, transported or disposed of, or otherwise managed.” [Footnote 105: 75 Fed. Reg. at 35166.] For a number of reasons, EPA has failed to meet this necessary standard. Among those reasons are (1) the scope of the proposed listing is overly broad; (2) EPA has no t identified or evaluated other federal and state regulatory programs applicable to CCBs as required by the listing criteria; and (3) EPA’s draft screening analysis involving potential risks for CCB fugitive dust emissions is overly conservative. In additi on, Southern Company agrees with and adopts USWAG’s comments regarding EPA’s improper characterization of CCBs as a “special waste.” [Footnote 106: See USWAG Comments, supra note 41, at Part VI.]

In the Bevill Amendment, Congress directed EPA to make a d etermination regarding whether CCBs warrant regulation under RCRA’s Subtitle C hazardous waste program. [Footnote 107: 42 U.S.C. 6921(b)(3)(A)(ii); 40 C.F.R. 261.4(b)(4). ] EPA completed the statutorily mandated Bevill determination process for CCBs consid ering earlier Reports to Congress, Regulatory Determinations, and input from numerous stakeholders after years of study, and EPA concluded in its final Regulatory Determination that CCBs do not warrant regulation under RCRA’s Subtitle C hazardous waste reg ulations. [Footnote 108: See generally 65 Fed. Reg. 32214 (May 22, 2000). In its first CCB Regulatory Determination in 1993, EPA concluded that, given that “the potential for damage from these wastes is most often determined by site

- or region

- specific
fac tors,” the “current State approach to regulation” under Subtitle D of RCRA is most appropriate. 58 Fed. Reg. 42466 (Aug. 9, 1993). EPA specifically explained, “[I]t is unlikely that Subtitle C would effectively address the problems associated with the four large

- volume fossil

fuel combustion wastes [CCBs] without imposing unnecessary costs.” Id. at 42477. EPA stated again in 1999 that RCRA “Subtitle C is inappropriate to address any problems associated with disposal of these wastes and that the continued us e of site and region specific approaches by the states [under RCRA Subtitle D] is more appropriate for addressing the limited human health and environmental risks that may be associated with disposal of these wastes.” EPA, REPORT TO
CONGRESS: WASTES FROM T HE COMBUSTION OF FOSSIL FUELS 3

- 5 (1999). EPA reaffirmed that CCBs do not warrant hazardous waste regulation in its 2000 Regulatory Determination, concluding that “the [S]ubtitle D regulations are the most appropriate mechanism for ensuring that [CCBs] dis posed in landfills and surface impoundments are managed safely.” 65 Fed. Reg. at 32221.] Instead, EPA determined that regulation of CCBs as non

- hazardous waste under Subtitle D of RCRA would be fully effective in protecting human health and the
environment .[Footnote 109: 65 Fed. Reg. at 32221.] EPA’s conclusions were based in substantial part on the fact that CCBs do not exhibit the “toxicity” characteristic (or any of the other characteristics of Subtitle C waste), based on the TCLP, which EPA uses to dete rmine toxicity for purposes of RCRA. [Footnote 110: See 75 Fed. Reg. at 35137

- 38.]

Southern Company agrees with EPA’s prior determinations that CCBs do not warrant regulation as a hazardous waste under RCRA Subtitle C. The information gathered since EPA’ s May 22, 2000, Regulatory Determination does not warrant any different conclusion today. Regulation of CCBs as a hazardous waste under RCRA Subtitle C would create inappropriate and unnecessary regulatory compliance burdens, including Subtitle C hazardous waste storage, treatment, disposal, corrective action, and unit closure requirements. For example, regulation of CCBs under Subtitle C would result in major disposal capacity shortfalls because many CCB generation facilities would be unable to comply with the regulations in a timely and economically feasible manner. EPA concluded in 1993 that “the potential for damage from these113

wastes is most often determined by site

- or region

- specific factors.” [Footnote 111: 58 Fed. Reg. at 42466.] Therefore, imposing Subtitle C regulations would eliminate states’ flexibility to take the most effective siteand region

- specific approaches to CCB management by imposing uniform and often inappropriate federal hazardous waste standards on this non

- hazardous material.

Moreo ver, implementing the Subtitle C proposal would be prohibitively expensive. By EPA’s own estimate, Subtitle C compliance costs for utilities would be at least three times higher than the “identical” controls under the Subtitle D proposal (average annual co st of $1.47 billion for the entire industry under the Subtitle C proposal versus $587 million under the Subtitle D proposal for the next 50 years). [Footnote 112: 75 Fed. Reg. 35128, 35213 (June 21, 2010).] EPA
concedes that its estimate of Subtitle C cost s does not include the costs for complying with certain significant components of the Subtitle C regulations, including the costs of facilities having to retrofit or upgrade CCB management units to meet the Subtitle C storage design operating standards. [F ootnote 113: Id. at 35212.] Southern Company believes EPA’s estimate is grossly understated. By comparison, Southern Company’s pre

- screening costs of the proposed Subtitle C requirements are between $12.5 and $22 billion for the entire Southern Company

sys tem alone.

In addition to agreeing with EPA’s prior determinations, Southern Company agrees with USWAG comments explaining that EPA cannot legally reverse its previous determinations that CCBs do not warrant regulation under Subtitle C.[Footnote 114: USW AG Comments, supra note 41, at Part III. ]Specifically, Congress established a detailed process by which EPA could determine whether and how to regulate CCBs under RCRA Subtitle C. EPA has completed that statutory decision

- making process

— determining in its 2000 final CCB Regulatory Determination that CCBs do not warrant Subtitle C regulation

— and RCRA does not authorize EPA to now reverse that final Regulatory Determination. It is a fundamental principle of administrative law that an agency’s authority to ac t must come directly from Congress and that absent that authority, an agency may not act. [Footnote 115: See, e.g., U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 566 (D.C. Cir. 2004). ] The Bevill Amendment contains no grant of authority for EPA to reverse a fi nal regulatory determination that the agency has already properly reached pursuant to the Amendment’s prescribed procedures and deadlines. If EPA wishes to once more undertake the statutorily prescribed process for reaching a final Regulatory
Determination for CCBs, it must obtain this authority from Congress. [Footnote 116: Southern Company supports USWAG’s comments on this issue. For further discussion, see USWAG Comments, supra note 41, at Part IV.]

EPA is also considering defining CCBs as a “special w aste” under the Subtitle C proposal. This designation would not ameliorate the consequences of Subtitle C coverage. As EPA notes, treatment of CCBs as a “special waste” would include regulation

—

from the point of their generation to the point of their fi nal disposition, including during and after closure of any disposal unit. This would include the generator and transporter requirements and the requirements for facilities managing CC[B]s, such as siting, liners (with modification), runon
and run

- off contr ols, groundwater monitoring, fugitive dust controls, financial assurance, corrective action, including facility

- wide corrective action, closure of units, and post

- closure care (with certain modifications). In addition, facilities that dispose of, treat, or , in many cases, store,114

CC[B]s also would be required to obtain permits for the units in which such materials are disposed, treated, and stored. [Footnote 117: 75 Fed. Reg. at 35133.]

Designation of CCBs as either a hazardous waste or special waste under the Subtitle C proposal would effectively reverse decades of progress in the beneficial use of a valuable product. The potential benefits of the Subtitle C proposal are less than the potential benefits from either the Subtitle D proposal or a Subtitle D P rime approach. [Footnote 118: See id. at 35134 (Table 1).] Regulation of CCBs under Subtitle C would have even more substantial negative effects than regulation under Subtitle D or “D Prime,” including greater job losses and higher electric rates
for consu mers, without corresponding benefits to environmental protection.

As discussed in Part II.A above, as among EPA’s three regulatory options, a modified Subtitle D Prime approach, properly developed with additional state regulatory oversight provisions, wo uld be more flexible, practical, and effective than the Subtitle C proposal (or Subtitle D proposal). A modified Subtitle D Prime approach provides the same level of protection of human health and the environment with less duplication or preclusion of ongo ing state and private efforts. Recognizing the importance of site

- and region

- specific controls, state agencies are better suited than EPA to administer any new requirements. Accordingly, for the reasons stated below, Southern Company recommends that EPA r eject the inappropriate Subtitle C proposal

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 dis cussion of the beneficial use aspects of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06308

- 3 

### Organization 1 

### : NRG Energy Inc. 

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



### Comment Excerpt Text:

A. The Rulemaking Record Supports the Subtitle D Option

The development of Subtitle D regulations is consistent with EPA’s two Reports to Congress and EPA’s corresponding 1993 and 2000 Final Reg ulatory Determinations under the Bevill Amendment. Here the Agency concluded that the disposal of CCRs do not warrant hazardous waste regulation under RCRA Subtitle C but rather should remain under the jurisdiction of state regulatory programs under RCRA S ubtitle D. EPA has consistently found that the Subtitle D approach, with active state involvement was the appropriate regulatory course for CCRs. Therefore, we recommend EPA follow through on its Final 2000 Regulatory Determination for CCRs by developing f

ederal non

- hazardous waste rules for the disposal of CCRs under Subtitle115

D. EPA should also consult with the states in determining how to regulate CCRs under RCRA
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 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06339

- 3 

### Organization 1 

### : Arizona Electric Power Cooperative, Inc. 

### Commenter 1 : Theresa D. Legere Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 2.1.5 

### Comment Excerpt Text: 2) Subtitle C Regulation violates the clear language and the legislative purpose of the Bevill Amendment to RCRA In 1980, Congress amended RCRA with the passage of the Bevill Amendment to ensure that EPA would not inappropriately subject CCRs to hazardous waste regulation. The amendment was intended to avoid the excessive costs associated wi th Subtitle C regulation of CCRs and to promote their beneficial use. In fact, the sponsors of the Bevill Amendment specifically stated their concerns regarding the fate of beneficial use of CCRs under Subtitle C regulation of CCRs. For example, Representa tive Bevill stressed that a primary purpose of his amendment was to support the “national commitment to encourage reuse of such materials as fly ash.”[Footnote 16: 126 Cong. Rec. at 3362.] Representative Findley advised that if CCRs were regulated under Su btitle C, the “flourishing industry which recycles these byproducts would be gravely disrupted and possibly closed down.”[Footnote 17: Id. at 3363.] Representative Harley Staggers stated bluntly that regulation of CCRs as a hazardous waste “would run count er to one of the principal designs of [RCRA]

– conservation of valuable material.”[Footnote 18: Id. at 3364

- 65.]

The Bevill Amendment addressed these concerns by suspending EPA’s authority to regulate
CCRs under Subtitle C of RCRA unless and until the A gency completed a study and reported to Congress on whether such regulation was warranted. With completion of the study and submission of the corresponding Report to Congress, the Bevill Amendment required EPA to make a final regulatory determination regar ding whether CCRs should be regulated under
Subtitle C.116

The Bevill Amendment required the Agency to base this final regulatory determination “on information developed or accumulated pursuant to [the RCRA § 8002] study, public hearings,
and comment. . . .”[Footnote 19: RCRA § 8002(n), 42 U.S.C. § 6982(n).] EPA submitted its first Report to Congress on March 8, 1988, concluding that fly ash, bottom ash, boiler slag, and flue gas emission control waste generally do not exhibit hazardous characteristics unde r RCRA. Accordingly, EPA stated that it did not intend to regulate those four large

- volume coal combustion waste streams. The initial report went on to encourage the utilization of coal
combustion wastes to the extent that such utilization could be done in an environmentally safe manner. Six months later, EPA reiterated in its first Regulatory Determination the conclusion that hazardous waste regulation was not warranted for those four large

- volume coal combustion

waste streams.

In short, EPA could only reach the decision to regulate CCRs under Subtitle C after following a statutorily prescribed series of steps that involved congressional oversight marked by EPA’s submission of reports to Congress that would inform the relevant congressional committees of jurisdiction of the Agency’s preliminary recommendations. [Footnote 20: 58 Fed. Reg. at 42477.]

The second Report to Congress, submitted in March 1999, again concluded that Subtitle C is inappropriate to address any problems associated with disposal of several other fossil fuel combustion wastes, including CCRs managed with certain low

- volume wastes and that “the continued use of site and region specific approaches by the states is more appropriate for addressing the limited human health and environment al risks that may be associated with disposal of these wastes.” In May 2000, EPA completed the Bevill Amendment’s statutorily prescribed assessment and reporting process when it issued its final Regulatory Determination for all remaining fossil fuel combus tion wastes, including CCRs managed with certain low

volume wastes.[Footnote 21: See 65 Fed. Reg. at 32214.] Echoing its first Regulatory Determination, EPA concluded that CCRs and other fossil fuel combustion wastes did not warrant regulation under RCRA’s Subtitle C hazardous waste program, determining instead that regulation as a non

- hazardous solid waste under Subtitle D of RCRA would be appropriate when CCRs are disposed of in landfills or surface impoundments.[Footnote 22: Id.]

Because of their dive rse natures, CCR disposal facilities are ill

- suited to regulation under the Subtitle C hazardous waste program. In its final determination that CCRs should not be subject to Subtitle C regulation in 2000, EPA stated that “it is more appropriate for individ ual States to have the flexibility necessary to tailor specific controls to the site or region specific risks posed by these wastes.”[Footnote 23: See NRECA Comments to this 2010 Proposed Rule (citing 58 Fed. Reg. at 41477).]117

Response: The Agency acknowle dges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06362

- 3 

### Organization 1 

### : Commenter 1 : Bret Reid, P.E. Commenter Type: Private Citizen
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: The EPA is also going against its own findings. In 1993 and again in 2000, the EPA found that coal ash "did not warrant regulation as a hazardous waste."

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 101 

### 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: The Subtitle C option would constitute an impermissible reversal of EPA’s final 2000 Regulatory Determination that CCR does not warrant hazardous waste regulation. It would also be in direct contravention of RCRA’s plain language establishing an unambiguous statutory process by which EPA can determine whether and how to regulate CCR under RCRA

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preamble for a discussion on our decis ion to regulate CCR under subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made

on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 13 

### Organization 1 

### : Duke Energy 

### Commenter 1 : Mike Stroben Commenter Type: Electric Utility Company
Classifica tion: Substantive118

Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.5 

### Comment Excerpt Text: In addition to the devastating impact that regulation under Subtitle C would have on the beneficial use of CCR, the Subtitle C option would constitute an impermissible reversal of EPA’s final 2000 Regulatory Determination that CCR does not warrant hazardous waste regulation. It would also be in direct contravention of RCRA’s plain language establishing an unambiguous statutory pro cess by which EPA can determine whether and how to regulate CCR under RCRA. EPA is, at a minimum, obligated to adhere to the statutory procedures that Congress prescribed for making the original regulatory determination, including providing a Report to Con gress setting forth its recommendation.[Footnote 6: Duke Energy refers EPA to the USWAG comments for a complete discussion of the legal and policy reasons why EPA cannot regulate CCR under the Subtitle C option.]

Response: The Agency acknowledges and app reciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, t he Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 17 

### 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: Moreover, by adopting the Subtitle D option, EPA would not reverse its final 2000 Regulatory Determination for CCR, but instead would support that determination by promulgating consistent
federal non

- hazardous waste rules for the disposal of CCR.

Response: The Agency acknowledges and appreciates the co mment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 21 

### Organization 1 

### : Duke Energy 

### Commenter 1 : Mike Stroben Commenter Type: Electric Utility Company
Classification: Substantive119

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



### Comment Excerpt Text:

It is also noted that while the 2000 Regulatory Determination for CCR identified areas where some state regulatory programs were lacking appropriate controls, EPA determined at the time
that those concerns could be addressed under a federal Subtitle D regulatory structure. Thus, it
follows that a state

- implemented regulatory structure would ensure adequate management of
CCR.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s pream ble for a discussion on our decision to regulate CCR under
subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 72 

### 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: The Subtitle C option in the Proposed Rule represents a reversal of EPA's two Reports to Congress and EPA's corresponding 1993 and 2000 Final Regulatory Determinations under the Bevill Amendment. In those instances, EPA concluded that the disposal of CCR does not warrant hazardous waste regulation. Indeed, in its 2000 Final Regulatory Determination, EPA concluded that regulating CCR as non

- hazardous waste under Subtitle D of RCRA would be fully effective in protecting human health and the environment. Nothing substantial in the Bevill studies has been identified since 2000 to change this conclusion. Moreover, it is significant that EPA completed the Bevill regulatory process for C CR in 2000, and that the statute does not authorize EPA to reverse that decision now. Therefore, Duke Energy endorses and concurs with USWAG’s assertions that the Subtitle C option in the Proposed Rule is legally flawed, and EPA is not at liberty to indepe ndently scuttle that statutory process.

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rul emaking at this time.120



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 77 

### 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: It is important to note that in the final 2000 Regulatory Determination, EPA recognized that the inflexible, one

- size

- fits

- all nature of the Subtitle C hazardous waste program was simply inappropriate for the diverse n ature of CCR disposal facilities. EPA cited this recognition as one of the deciding factors for its decision not to regulate CCR as a hazardous waste. Setting aside the regional differences of managing CCR in waste management units with various geological, climatological, and hydrological characteristics, the sheer volume and the physical composition of CCR makes compliance with Subtitle C requirements extremely burdensome

– with no greater
human health or environmental benefit.

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



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 25 

### 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 Govern ment Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.5 

### Comment Excerpt Text: In response to page 35148, III. Overview and Summary of the Bevill Regulatory Determination and the Proposed Subtitle C and Subtitle D Regulatory Options, the discussion states that in May 2000, EPA concluded disposal of CCRs did not warrant regulation under Subtitle C, but did warrant regulation under Subtitle D of RCRA. WDNR supports EPA’s May 2000 conclusion a nd believes EPA should use its limited resources to develop a subtitle D program as discussed in this set of comments. This seems to be an effective management approach given the experience WDNR has with these materials as opposed to beginning the regulato ry assessment again. Any potential benefits that may be gained by going with subtitle C regulations will be lost in the time and effort to develop and implement subtitle C regulations.121

Response: The Agency acknowledges and appreciates the comment.



### Comm ent Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06446

- 1 

### 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 Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: II. Background of the Bevill Amendment

In 1980, Congress amended (“RCRA”) with the passage of the Bevill Amendment to ensure that EPA would not inappropriately subject CCRs to ha zardous waste regulation. The amendment was intended to avoid the excessive costs associated with Subtitle C regulation of CRs and to promote their beneficial use. The Bevill Amendment addressed these concerns by suspending EPA’s authority to regulate CCRs under Subtitle C of RCRA unless and until the Agency completed a study and reported to Congress on whether such regulation was warranted. With completion of the study and submission of the corresponding Report to Congress, the Bevill Amendment required EP A to make a final regulatory determination regarding whether CCRs should be regulated under Subtitle C. The Bevill Amendment required the Agency to base this final regulatory determination “on information developed or accumulated pursuant to [the RCRA § 80 02] study, public hearings, and comment. . . .” RCRA § 8002(n), 42 U.S.C. § 6982(n). In short, EPA could only reach the decision to regulate CCRs under Subtitle C after following a statutorily

- prescribed series of steps that involved congressional oversigh t marked by EPA’s submission of reports to Congress that would inform the relevant congressional committees of jurisdiction of the Agency’s preliminary recommendations.

III. Implementation of the Bevill Amendment

EPA submitted its first Report to Congres s on March 8, 1988, concluding that fly ash, bottom ash, boiler slag, and flue gas emission control waste generally do not exhibit hazardous characteristics under RCRA. Accordingly, EPA stated that it did not intend to regulate those four large

- volume coal combustion waste streams. The initial report went on to encourage the
utilization of coal combustion wastes to the extent that such utilization could be done in an environmentally safe manner. Six months later, EPA reiterated in its first Regulatory
Deter mination the conclusion that hazardous waste regulation was not warranted for those four large

- volume coal combustion waste streams. 58 Fed. Reg. at 42477.

The second Report to Congress, submitted in March, 1999, again concluded that Subtitle C is inappro priate to address any problems associated with disposal of several other fossil fuel combustion wastes, including CCRs managed with certain low

- volume wastes and that “the continued use of site and region specific approaches by the states is more appropria te for addressing the limited human health and environmental risks that may be associated with disposal of these wastes.” In May 2000, EPA completed the Bevill Amendment’s statutorily

-122

prescribed assessment and reporting process when it issued its final Reg ulatory Determination for all remaining fossil fuel combustion wastes, including CCRs managed with certain low

volume wastes. See 65 Fed. Reg. at 32214. Echoing its first Regulatory Determination, EPA
concluded that CCRs and other fossil fuel combustion wa stes did not warrant regulation under RCRA’s Subtitle C hazardous waste program, determining instead that regulation as a non

hazardous solid waste under Subtitle D of RCRA would be appropriate when CCRs are disposed of in landfills or surface impoundments . Id.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06534

- 7 

### Organization 1 

### : Lafarge North America Inc. 

### Commenter 1 : Brian Gasiorowski on behalf of Craig S. Campbell Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: The current proposal for Subtitle C regulation, also contradicts EPA’s prior position as stated in the two prior Report s to Congress, which concluded that the regulation of CCRs is not warranted. EPA now claims to support an opposite conclusion

– Subtitle C regulation

– and the Report to Congress should be updated to reflect the basis of EPA’s current position. In addition

, the public would then have the opportunity to peer review the updated information used by EPA in justifying Subtitle C regulation of CCRs. The seventeen “problem projects” should not be the basis for potentially destroying CCR utilization in the United S tates

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06820

- 6 

### 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: 3.1.2 2.1.1 

### Comment Excerpt Text: 2. Treatment of CCPs as “hazardous waste” under RCRA Subtitle C is inappropriate.

The Roundtable joins dozens of Members of Congress, state policym akers, including the National Governors Association, Western Governors Association, numerous state environmental protection agencies and vast numbers of private parties in opposing categorization of CCRs as
hazardous waste under Subtitle C of RCRA. Such a step would have far

- reaching and negative impacts on the U.S. economy and severely hamper the energy production and electricity123

generation sectors’

– including a number of Roundtable members’

– abilities to meet the nation’s burgeoning energy demands.

Th e Roundtable wishes to associate itself with the detailed comments submitted by a variety of organizations, including the Utility Solid Waste Activities Group (USWAG), NMA and others, regarding the legal frailties associated with this alternative. In short : the proposed RCRA Subtitle C option would constitute an impermissible reversal of the Agency’s 2000 final Bevill Regulatory Determination for CCRs.

Such a reversal would be a direct contravention of the plain language of Subtitle C, which lays
out clear and specific procedures EPA is to follow to determine whether and how to regulate CCRs under the Act. That statutory process sets up a one

- time

- only determination. It does not contemplate reversal of the final determination.

Even assuming the statute di d allow EPA to make a new determination, it could not contravene the statutory procedures Congress laid out for such determinations, including: a technically

supported determination, reporting to Congress, consultation with states and public stakeholder
in put.

Also disturbing: the Subtitle C proposal seems to imply that EPA will, for the first time, look to apply RCRA retroactively. The law has always been prospective, as it relates to regulatory requirements. Yet, in this alternative, EPA seems to be see king regulation of inactive or previously closed CCR surface impoundments. This seems to us outside the recognized scope of
the statute.

Response: The Agency is regulating the disposal of CCR under subtitle D of RCRA. The Agency has also determined that regulation of inactive CCR surface impoundments as defined in section 257.53 is appropriate and necessary as discussed in Unit VI of the preamble supporting this rule. The commenter is referred to the applicability section of the preamble for a complete

discussion.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06827

- 2 

### Organization 1 

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

### Commenter 1 : Kenneth E. Raymond Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 3.1.2 

### Comment Excerpt Text: II. The Subtitle C Option is Inconsistent with the Bevill Amendment Briefly, the Bevill Amendment to RCRA was the direct result of Congress's concern that the U.S. Environmental Protection Agency might discourage the use of coal as one of the nation's primary sources of energy if it prematurely and inappropriately subjecte d CCRs to regulation under the hazardous waste provisions of RCRA Subtitle C. I Accordingly, when Congress124

enacted the Amendment into law in 1980, it effectively suspended the Agency's authority to regulate CCRs under Subtitle C until the Agency completed a study to determine whether in fact such regulation was warranted and submitted a report to that effect to Congress. The Amendment also required the Agency to make a "final regulatory determination" whether to subject CCRs to Subtitle C regulation followi ng submission of the aforementioned report to Congress. In short, the Bevill Amendment was intended to address Congress's concern by cautioning the Agency not to impose unnecessary and costly regulations on those industries using coal to produce
electricit y. It also reflects Congress's concern that regulating CCRs under Subtitle C could discourage and perhaps end altogether the beneficial use of CCRs. Thus, through the Bevill Amendment Congress singled out CCRs for special consideration by the Agency in det ermining whether, and how, to regulate them under RCRA, with Subtitle C regulation representing an option of last resort. The Agency could reach the decision to regulate CCRs under Subtitle C only after following a statutorily prescribed series of steps th at involved congressional oversight marked by the Agency's submission of a report to Congress that would inform the relevant congressional committees of jurisdiction of the Agency's preliminary recommendation. The final regulatory determination was to be i ssued according to a statutorily

imposed deadline and based on public hearings and comments responding to the report to Congress. Shortly after enactment of the Bevill Amendment and completion of the requisite study, the Agency began to prepare its report to Congress by dividing it into two phases. The I Ref. RCRA § 300J(b)(3)(A), 42 U.S.C. § 692J(b)(3)(A). initial phase addressed the management of CCRs independent of any other wastes that are generated by coal

- fired power plants during the course of produc ing electricity. The second phase addressed CCRs that are co

- managed with certain low volume wastes (i.e. boiler cleaning solutions, boiler blowdown, demineralizer regenerant, pyrites and cooling tower blowdown) that are routinely generated by those plants

. Pursuant to this two

- phased approach, the Agency submitted its first report to Congress in March, 1988. In the report, the Agency concluded that CCRs that are managed independent of the aforementioned low volume wastes generally do not exhibit any of the hazardous characteristics under the current RCRA regulations and therefore do not warrant regulation under Subtitle C of RCRA. In August, 1993, the Agency published a final regulatory determination to that effect in which it reiterated that the regulation of CCRs under Subtitle C ofRCRA was not
warranted. Shortly after the August, 1993 final regulatory determination was published, the Agency began work on its second repOtt to Congress on CCRs that are co

- managed with the aforementioned
low volume wastes. I n March, 1999, the Agency submitted its second report to Congress in
which it concluded that CCRs when co

- managed with those wastes do not warrant regulation under Subtitle C of RCRA. In May, 2000, the Agency published a final regulatory determination

to t hat effect in which it reiterated that comanaged CCRs do not warrant regulation under RCRA's Subtitle C hazardous waste program. Instead, the Agency indicated that CCRs should more appropriately be regulated under the solid waste provisions of RCRA Subtitl e D where they are disposed of in landfills or surface impoundments. In light of the above, the legal framework by which the two proposed primary regulatory options must be evaluated is the Bevill Amendment. It is OO&E's opinion that the proposed rule's
S ubtitle C option represents an impennissible reversal of the Agency's final regulatory determinations for CCRs. Specifically, the proposed Subtitle C option is in direct conflict with the plain language of the Bevill Amendment that established an unambiguo us statutory process125

by which the Agency can determine to what extent CCRs should be regulated under RCRA and which does not provide a mechanism to reverse those determinations. Put another way, having completed the final regulatory determination process f or CCRs in May, 2000 pursuant to a statutorily prescribed mandate, the Agency is not at liberty to undo that process. Even assuming arguendo that RCRA provides a mechanism for the final regulatory determinations to be reversed, the Agency would still be ob ligated to adhere to the process that Congress prescribed for making the original detenninations, including providing a report to Congress that sets forth its recommendation to reverse those determinations. In short, OO&E believes that the Agency has ignor ed the statutory process by including the Subtitle C option in the proposed rule. While OO&E has several concerns with the Subtitle D option, it nevertheless represents a more appropriate regulatory structure under which the Agency could promulgate federal regulations for CCRs. Under the Subtitle D option, the Agency would not be attempting to reverse its final regulatory determinations for CCRs and run afoul of the statutory process established by Congress. Instead, by promulgating federal non

- hazardous so lid waste regulations for the disposal of CCRs under Subtitle D of RCRA, CCRs would remain classified as a non

- hazardous solid waste and the Agency could develop nationwide self

- implementing regulations for CCR disposal facilities

Response: The Agency ack nowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill

Determina tion. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06827

- 6 

### Organization 1 

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

### Commenter 1 : Kenneth E. Raymond Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.4.3 

### Comment Excerpt Text: IV. The Subtitle C Option Will Harm the Beneficial Use of CCRs In the proposed rule, the Agency states that regulating CCRs under the Subtitle C option will actually increase their beneficial use. The Agency's position in that regard is not only in direct conflict with its earlier position on the matter but ignores a wealth of information to the contrary that has been provided to the Agency by a variety of sources, both public and private. For example, in its May, 2000 final regulatory determination, the Agency stated that the stigma from regulating CCRs under Subtitle C of RCRA via a contingent management approach could harm the beneficial use of CCRs. As the Agency explained in rejecting the Subtitle C contingent management approach: "We also see a potential downside to pursuing a subtitle C approach. Section 8002(n)(8) [of RCRA] directs us to consider, among other factors, the current and potential utilization of such materials. IndustlY commenters have indicated that they believe sub jecting any coal combustion126

wastes to a subtitle C regime would place a significant stigma on these wastes, the most import effect being that it would adversely impact beneficial reuse. EPA believes the contingent management scheme we discussed should dimi nish any stigma that might be associated with the subtitle C link. Nonetheless, we acknowledge the possibility that the approach could have unintended consequences. We would be particularly concerned about any adverse effect on the
beneficial re

- use market for these wastes ... ". The Agency continued: "Normally, concerns about stigma are not a deciding factor in EPA's decisions under RCRA, given the central concern under the statute for protection of human health and the environment. However, given our conc lusion that the subtitle D approach here should be fidly effective in protecting human health and the environment, and given the large and salutmy role that beneficial reuse play for this waste, concern over stigma is a factor supporting our decision today that subtitle C regulation is unwarranted in light of our decision to pursue a subtitle D approach.

" As evidenced by the above, after more than two decades of research following which the Agency concluded that CCRs did not walTant Subtitle C regulation a nd acknowledged that just the possibility of subjecting CCRs to such regulation could adversely impact CCR beneficial use; and an additional 10 years since the Agency published it final regulatory determination to that effect, it is surprising that the Age ncy now takes the position that subjecting CCRs to Subtitle C regulation will actually promote their beneficial use. Just as surprising is the fact that the Agency fails to provide any reasoned explanation for this change in position. Since the Agency firs t initiated this rulemaking and advised that it was considering reversing its final regulatory determinations and regulating CCRs under RCRA Subtitle C, the Agency has received hundreds of letters and both oral and written testimony at public hearings, not to mention Congressional testimony from a wide spectrum of third parties directly involved in the business of regulating, conducting research, establishing nation

- wide industry standards, marketing and beneficially using CCRs. These letters and testimony reiterated what the Agency acknowledged in the May, 2000 final regulatory determination: that the mere threat of regulating CCRs under Subtitle C would adversely impact their beneficial use. Rather than substantiate its theory that the beneficial use of CC Rs will increase under Subtitle C, the Agency has shifted the burden of proving that such regulation will have an adverse impact on their beneficial use on industry. In that regard, since publication of the proposed rule, ash
marketers have stated that the y will seriously consider avoiding tlle use of CCRs generated by
coal

- fired power plants in applications such as cement and asphalt manufacturing as well as soil stabilization if the Agency decides to regulate CCRs as a hazardous waste. Their concerns are not surprising; the potential liability associated with using a material that the Federal government has decided is a hazardous waste outweigh tlle benefits that otherwise result from its use. The net effect of their decision could result in the disposal o f these CCRs at a Subtitle C hazardous waste landfill, the exorbitant cost of which will ultimately be paid by consumers. Moreover, if the marketplace decides that CCRs are not appropriate for beneficial use, those that are currently used in various applic ations will be disposed and possibly replaced by virgin materials which would have to be mined or otherwise produced in ways that could be environmentally harmful. Indeed, according to the Agency's own Coal Combustion Products Partnership website, benefici ally using CCRs saves virgin resources, reduces energy consumption and greenhouse gas emissions. By developing a regulatory scheme that discourages the beneficial use of CCRs, the risk of environmental harm could actually increase by increasing127

the use of virgin resources and energy consumption while increasing greenhouse gas emissions. Thus, the Agency's proposal to regulate CCRs as a hazardous waste under the Subtitle C option 10 years after it decided not to do so via its May, 2000 final regulatory deter mination not only ignores the statutory process established under the Bevill Amendment through which it arrived at that decision, it also ignores the concerns that Congress had at the time the Amendment passed: that the regulation of CCRs under Subtitle C will have an adverse impact on the beneficial use of these materials while encouraging the use of and reliance on virgin resources, both of which run counter to one of the fundamental underpinnings of RCRA

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

- 06835

- 1 

### Organization 1 

### : U.S. Senate 

### Commenter 1 : Kyle D. Miller on behalf of James M. Inhofe Commenter Type: Federal Elected Official
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Secti ons: 2.1.6 

### Comment Excerpt Text: On July 29, 20 I0, I joined a number of my Senate colleagues to oppose, for a variety of reasons, the regulation of CCRs under RCRA Subtitle C. I write to raise a more fundamental concern with the proposed Subtitle C optio n. The Subtitle C option assumes that EPA can summarily reverse its final 2000 Regulatory Determination that CCRs do not warrant hazardous waste regulation, an action that I do not believe EPA has the authority to undertake.

Before making any final regul atory determination for CCRs, Congress, through the l3evill Amendment, directed EPA to first study CCRs pursuant to the eight statutory study factors and then "publish a report on such study, which shall include appropriate findings." [Footnote 1:
RCRA Sec tion 8002(n).] Such "study and findings shall be submitted to the Committee on Environment and Public Works or the United States Senate and the Committee on Energy and Commerce of the United States House of Represel1tatives..· [Footnote 2: Id.] Following

s ubmission of the report to the appropriate Congressional Committees. the statute requires that EPA conduct public hearings and provide an opportunity for comment on the Report to Congress, and then either determine to promulgate regulations" for CCRs under RCRA Subtitle C or determine that such regulations are unwarranted. [Footnote 3: RCRA Section § 3001(bX3XC).] Following this process, EPA is directed to publish its regulatory determination, "which shall be based on information developed or accumulated pu rsuant to such study, public hearings and comment in the Federal Register accompanied by an explanation and justification of the reasons for it. [Footnote 4: Id.]

EPA completed this statutory decision

- making process for CCRs in 2000 when it issued its fi nal Bevill Regulatory Determination concluding, based on its 1999 Report to Congress and public hearings and comments on that report, that CCRs do not warrant regulation under RCRA Subtitle128

C. The statute does not authorize EPA to decide independently to r evisit this decision and reverse its final CCR Regulatory Determination under a process of its own creation.

EPA's implicit assumption that it can proceed with the Subtitle C option, that it could issue a new regulatory determination for CCRs without fir st providing Congress with the statutorily required report on its recommendation, is extremely troubling. The statute is clear regarding such action: prior to making a final regulatory determination for CCRs, EPA is required to provide both the
Senate Envi ronment and Public Works Committee and the House Energy and Commerce Committee a report detailing its initial regulatory recommendation. The statute also makes clear that any final regulatory determination must be based on such Report to Congress. This pro cess is critical to ensure that Congress retains its oversight role of EPA's deliberative process under which it determines whether and how to regulate CCRs. EPA has not prepared a Report to Congress informing the relevant Congressional Committees of juris diction that the Agency intends to reverse course and regulate CCRs under RCRA Subtitle C.

This failure is especially troubling given that both an earlier 1988 Report to Congress and its second 1999 Report to Congress made clear that CCRs do not warrant regulation under RCRA's Subtitle C hazardous waste program and that EPA did not intend to pursue this regulatory path. Now, more than ten years after determining that CCRs do not warrant regulation under Subtitle C, EPA is proposing to reverse that decisio n without explaining its reasoning to Congress as required by the statute. This failure deprives Congress of its statutorily

- prescribed oversight role to be fully informed of any such recommendation so that it can evaluate and respond, as appropriate, to t he Agency's recommended course of action before EPA makes a final regulatory determination for CCRs. Such an approach is inconsistent with the statute which requires that any final regulatory determination be based on the Report to Congress.

As the Rankin g Member of the Senate Environment and Public Works Committee, I am deeply troubled by both EPA's assumption that it can summarily reverse its final Regulatory Determination for CCRs and with its apparent conclusion that it can do so without adhering to
th e statutorily prescribed procedures for making such a decision, including the publication of a Report to Congress informing the relevant Congression a l committees of jurisdiction of the Agency's initial recommendation. I therefore believe EPA cannot pursue the Subtitle C option for CCRs set forth in the recent proposal

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- H Q

- RCRA

- 2009

- 0640

- 06849

- 9 

### Organization 1 

### : Little Village Environmental Justice Organization (LVEJO) 

### Commenter 1 : Keith Harley129

Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: U.S. EPA’s rulemaking “alternatives” fail to account for strict limits on its authority under RCRA in light of the Supreme Court’s decision in City of Chicago v. EDF. LVEJO asserts that U.S. EPA has significantl y overestimated its authority under RCRA to exempt CCR, and the facilities that generate it, from Subtitle C.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preamble for a discussion on ou r decision to regulate CCR under
subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill

Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06863

- 12 

### 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: 2.1.1 2.1.4 

### Comment Excerpt Text: EPA completed the Bevill regulatory process for CCRs in 2000; the statut e does not authorize EPA to reverse that decision. EPA has completed the Bevill process pursuant to a judicially

imposed deadline and determined, in accordance with the congressionally

- mandated decision

making process, that CCRs do not warrant regulation u nder Subtitle C. The statutory decision

making process is complete and RCRA does not authorize EPA to decide to “take a second bite at the apple” and reverse its final CCR Regulatory Determinations in a manner of its own choosing. Congress established a d etailed process by which EPA could determine whether and how to regulate CCRs under RCRA Subtitle C. EPA has completed that statutory process, determining that CCRs do not warrant regulation under RCRA Subtitle C, and concluded instead that CCRs

warrant re gulation under RCRA’s Subtitle D non

- hazardous waste program. The statute does not contemplate, let alone authorize, EPA undertaking another round of the Bevill decision

- making for CCRs. If it did, the statutory process and its associated deadlines for rea ching a final Regulatory Determination would have no meaning, and EPA could continually change its mind in an abbreviated fashion, as illustrated by the proposed Subtitle C option. If EPA wishes to once more undertake the statutorily

- prescribed process fo r reaching a final regulatory determination for CCRs, it must obtain this authority from Congress. If Congress were to grant EPA such authority, it would be reasonable to expect that Congress would establish new statutory deadlines and perhaps new and diff erent statutory study factors for EPA to evaluate in undertaking an additional regulatory determination for CCRs. Absent such authority130

from Congress, the Agency is not empowered to alter its final 1993 and 2000 Regulatory
Determinations for CCRs. Therefor e, EPA cannot legally pursue the Subtitle C option.

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06868

- 1 

### Organization 1 

### : Cleco Corporation 

### Commenter 1 : Bill Matthews Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Ex amine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: Cleco finds the arguments in the USWAG Comments to be most compelling. One of the major items referred to throughout the USWAG Comments is the Bevill Amendment. A most interesting and accepted point drawn from the Bevill Amendment, the legislative history of the Amendment and court statements concerning the Amendment is that EPA cannot reverse it's CCR regulatory determinations, in 1993 and 2000, to regulate coal combustion residual s through the Subtitle D program. Cleco agrees with this deduction described in the USWAG Comments and urges EPA to comply with the Bevill Amendment 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06956

- 2 

### Organization 1 

### : Tri

- State Generation & Transmission 

### Commenter 1 : Barbara A. Walz Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: A. The Rulemaking Record Supports T he Subtitle D Option At the outset, it is important to reiterate that the development of Subtitle D non

- hazardous waste regulations for CCRs is fully consistent with the rulemaking record; in fact, it is the only lawful option available to the Agency. The development of Subtitle D regulations would be the131

appropriate outgrowth of EPA’s two Reports to Congress and two final Regulatory Determinations under the Bevill Amendment declaring that CCRs do not warrant hazardous waste regulation under RCRA Subtitle C , but rather should remain the province primarily of state regulatory programs under RCRA Subtitle D. Throughout its 20

- year study and issuance of the required Reports to Congress and final CCR Regulatory Determinations, EPA has consistently found that the Subtitle D approach, with active state involvement, was the appropriate regulatory course for CCRs. In its first CCR Regulatory Determination in 1993, EPA concluded that, given that “the potential for damage from these wastes is most often determined by s ite

- or region

- specific factors,” the “current State approach to regulation” under RCRA Subtitle D is most appropriate. EPA echoed this finding in its second Report to Congress in 1999, concluding once again that RCRA Subtitle C is inappropriate to address any problems associated with disposal of these wastes and that the continued use of site and region specific approaches by the states under RCRA Subtitle D is more appropriate for addressing the limited human health and environmental risks that may be ass ociated with disposal of these wastes. EPA reaffirmed the appropriateness of the Subtitle D option in its 2000 CCR Regulatory Determination, concluding that the Subtitle D regulations are the most appropriate mechanism for ensuring that CCRs disposed in la ndfills and surface impoundments are managed safely. In addition to the fact that CCRs rarely exhibit a hazardous waste characteristic, EPA explained that the decisive factors in reaching its final determination that CCRs do not warrant regulation under
RC RA’s Subtitle C hazardous waste regulations were: (1) improving trends in present CCR disposal and utilization practices (per the Bevill study factor in 8002(n)(2)), (2) the current and potential utilization of CCRs (i.e., beneficial use), per the Bevill s tudy factor in 8002(n)(8), and (3) Congress' admonition in the Bevill Amendment against duplication of efforts by other federal and state agencies. In concluding that Subtitle D was the appropriate regulatory path forward, EPA also pointed to the 1999 Repo rt to Congress, that stated “the utility industry has made significant improvements in its waste management practices over recent years and to similar record evidence that state [CCR regulatory] programs have, in fact, substantially improved over the last 15 years or so." EPA found that "the ability for most states to impose specific regulatory controls for coal
combustion wastes has increased almost three

- fold over the past 15 years”. EPA concluded that, with the exception of relatively few states, the reg ulatory infrastructure is generally in place at the state level to ensure adequate management of these wastes. Critically, this positive trend has continued, with EPA and DOE finding in their joint 2007 Report of state CCR controls that [t]he
data and anal yses documented in this report provide new information that appears to show improved management of CCWs in both landfills and surface impoundments

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



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06987

- 16 

### Organization 1 

### : Entergy Services, Inc. 

### Commenter 1 : Joseph Hantz Commenter Type: Electric Utility Company132

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.1 

### Comment Excerpt Text: EPA Does Not Have the Authority to Reverse Its Final Regulatory Determination Under
The Bevill Amendment

EPA completed the statutorily

- required Bevill Amendment process in May 2000 when it issued its final Regulatory Determination for all remaining fossil fuel combustion wastes, including CCRs managed with certain low

- volume wastes. Based on the record evidence, hearings, and public comment on the 1999 Report to Congress, EPA once again concluded that CCRs and other fossil fuel combustion wastes did not warrant regulation under RCRA’s Subtitle C hazardous waste program . EPA concluded instead that the development of national non

hazardous solid waste regulations under RCRA Subtitle D is appropriate when CCRs are disposed of in landfills or surface impoundments.[Footnote 4: 65 Fed. Reg. 32214 (May 22, 2000)].

Entergy bel ieves that the primary issue with the proposed Subtitle C option is that it is premised on the notion that EPA may, at will, reverse its final Regulatory Determinations that CCRs do not warrant regulation under Subtitle C of RCRA. However, the statute does not authorize EPA to reverse these final Regulatory Determinations; thus EPA may not adopt the Subtitle C hazardous waste option for CCRs. Additionally, EPA’s proposal to regulate CCRs under Subtitle
C does not meet the intent of the Bevill Amendment’s st atutorily

- prescribed decision

- making

process.

Response: The Agency acknowledges and appreciates the comment. 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 and for a dis cussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of t his rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06987

- 17 

### Organization 1 

### : Entergy Services, Inc. 

### Commenter 1 : Joseph Hantz Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.1 2.1.4 

### Comment Excerpt Text: In the event that Congress were to grant EPA the authority to undertake an additional regulatory determination for CCRs, Congress could establish new and different statutory deadlines and133

perhaps new and different statutory study factors for EPA to evaluate. Absent such authority from Congress, Entergy does not believe that EPA may alter its final 1993 and 2000 regulatory determinations for CCRs, nor pursue its Subtitle C pro posed option.

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06987

- 19 

### Organization 1 

### : Entergy Services, Inc. 

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



### Comment Excerpt Text: Complia nce Issues with Subtitle C Make This Option Unworkable

One of the fundamental reasons EPA cited for deciding not to regulate CCRs in its final Regulatory Determination for the four large

- volume CCRs was the recognition that the inflexible, one

- size

- fits

- all nature of the Subtitle C hazardous waste program simply was not appropriate for the diverse nature of CCR disposal facilities. As EPA explained in its 2000 Regulatory Determination:

If such wastes were placed in the Subtitle C universe, all ash dispos al units would be required to meet specific liner and monitoring requirements. Since [CCR] sites vary widely in terms of topographical, geological, climatological, and hydrological characteristics (e.g., depth to groundwater, annual rainfall, distance to d rinking water sources, soil type) and the wastes potential to leach into the groundwater and travel to exposure points is linked to such factors, it is more appropriate for individual States to have the flexibility necessary to tailor specific controls

to the site or region specific risks posed by these wastes. Footnote 5: 58 Fed. Reg. at 41477.].

This conclusion remains true today.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06987

- 24 

### Organization 1 

### : Entergy Services, Inc.134



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



### Comment Excerpt Text: In EPA’s 2000 Regulatory Determination , EPA concluded that CCRs did not warrant regulation under Subtitle C and that any final decision takes into account the beneficial reuse of such materials. EPA noted based on comments received that subjecting any coal combustion wastes to a Subtitle C reg ime would place a significant stigma on these wastes, the most important effect being that it would adversely impact beneficial reuse.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07001

- 9 

### Organization 1 

### : Vectren Corporation 

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



### Comment Excerpt Text: Indeed, EPA explicitly recognized the potential negative perception issues attached to a hazardous waste classification for these materials when it rejected a hazardous waste classification for CCRs in its 2000 Final Regulatory Determination [Footnote 4: 65 Fed. Reg. 32217.] .

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07047

- 4 

### Organization 1 

### : Great River Energy 

### Commenter 1 : Erik Silvola Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: EPA itself has determined on two occasions (1993 and 2000 Final Determinations) that CCR properties do not warrant their regulation as a hazardous waste.135

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07802

- 2 

### Organization 1 

### : Alpha Natural Resources 

### Commenter 1 : Michael R. Peelish Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.1 2.1.4 

### Comment Excerpt Text: The proposed rule is illegal because it violates the Bevill Amendment to RCRA which specifically limits EPA's ability to regulate CCR. EPA can consider CCR regulation only in extremely limited circumstances and only after extensive analysis of the science and risk issues associated with CCR disposal. On two prior occasions, in 1993 and 2000, EPA issued comprehensive reports pursuant to the Bevill Amendment regarding CCR and in both instances determined that CCR should not be regulated under Subtitle C. The 2000 determination noted the array of potential issues, but found that those issues did not justify or require the extreme cost and difficulty of regulating such a vas t quantity of low risk material under Subtitle C.

As an initial matter, EPA's action here is illegal because EPA no longer has any authority to regulate CCR as a hazardous waste. Having submitted the required report and mage its determination that regulat ionof CCR as a hazardous waste is unwarranted, EPA is done. The Bevill Amendment has no language allowing EPA to revisit its determination. Unless or until Congress amends RCRA to grant EPA the authority to reconsider its 2000 findings, EPA has no
authorit y to regulate CCR as a hazardous waste.

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussio n on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this ru lemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07802

- 3 

### Organization 1 

### : Alpha Natural Resources 

### Commenter 1 : Michael R. Peelish Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.1 10.4.2 

### Comment Excerpt Text: EPA claimed to retain authority to revisit this issue in its 2000 determination primarily based on136

its desire to ensure that industry continued its trend toward voluntary control. Yet in is suing the current proposed action, EPA simply ignores the continuing (and expanding) trend toward control of CCR disposal, including the burgeoning development of numerous new and more sustainable beneficial uses which have expanded exponentially since EPA 's 2000 determination. Not only is EPA evading the sole ground it might have for reopening its 2000 decision, it is paradoxically proposing to stop this very positive trend by taking action to stifle these beneficial uses, impede the development of further beneficial measures. As a result, EPA's proposed action would significantly expand the very risks that EPA claims to address, making that action illegal,

wrong

- headed and counter

- productive.

Response: The commenter is referred to Unit IV of today’s prea mble 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

- 07803

- 7 

### Organization 1 

### : GDF SUEZ Energy Generation North America 

### Commenter 1 : Bradley J. Cooley Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.2 

### Comment Excerpt Text: GSEGNA Concerns with the Subtitle C Approach

GSEGNA opposes regulating coal combustion residuals as a hazardous waste. Based upon voluminous historical data regarding the physical and chemical properties of these residuals,
such a classification is simply not warranted. Even EPA itself, in a May 22, 2000 “Regulatory
Determination from Fossil Fuels

– Final Rule”, concluded that these materials do not warrant regulation under Subtitle C.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08221

- 3 

### Organization 1 

### : NextEra Energy, Inc. 

### Commenter 1 : Tomey Tuttle Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.2.2 

### Comment Excerpt Text: For the many reasons elaborated upon in the comments submitted by USW AG including questions of legality, damage to the beneficial use markets, and increased electric costs, NextEra137

Energy holds that a reversal of the 2000 Bevill determination and regulati on of CCR as a hazardous waste under the proposed rule is not appropriate.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08229

- 5 

### Organization 1 

### : Alabama Public Service Commission 

### Commenter 1 : John D . Free Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 3.1.2 

### Comment Excerpt Text: Previously, the EPA determined that CCBs do not warrant regulation as a RCRA Subtitle C hazardous waste. The APSC understands that EPA issued two formal reports to Congress, in 1988 and 1999, in which it concluded that CCBs do not warrant regulation as a h azardous substance. In addition, in 1993 and 2000, the EPA issued formal regulatory determinations that the preferable approach for regulating CCBs was under RCRA Subtitle D, and not Subtitle C, as the latter course would adversely impact CCB beneficial us e. The APSC agrees with that
conclusion.

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 disc ussion of the beneficial use aspects of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08229

- 7 

### Organization 1 

### : Alabama Public Service Commission 

### Commenter 1 : John D. Free Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: In this respect, the APSC questions the need for any drastic change to existing practices, especially when CCBs are being managed and utilized in a manner that is suf ficiently protective of human health and the environment. Stated differently, the APSC is not convinced that a single failure of a CCB impoundment facility, namely the TVA Kingston spill, by itself justifies the
conclusion that CCBs are hazardous and that all existing disposal facilities and practices should be eliminated in favor of new, extremely costly approaches. To this end, the APSC is not aware of any conclusive findings or information that refutes the previous determinations made by EPA regarding th e need to regulate CCBs as hazardous substances.138

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08244

- 1 

### Organization 1 

### : Edison Mission Energy, LLC 

### Commenter 1 : Basil G. Constantelos Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Ot her Sections: 2.1.4 

### Comment Excerpt Text:
III. EPA’S PROPOSAL TO LIST CCRs AS A “SPECIAL WASTE” SUBJECT TO RCRA SUBTITLE C REQUIREMENTS IS NOT SUPPORTED BY THE AVAILABLE DATA AND
IS CONTRARY TO LAW A little over 30 years ago, Congress reauthorized RCRA an d exempted from regulation as a hazardous waste specific large

- volume wastes generated from the combustion of coal or other fossil fuels [Footnote 2: See Section III.A for a more thorough discussion of the Congressional exemption of CCRs.]. Congress also d irected EPA to conduct a detailed and comprehensive study based on eight study factors and to submit a Report to Congress on “the adverse effects on human health and the environment, if any, of the disposal and utilization of fly ash waste, bottom
ash wast e, slag waste, flue gas emission control waste, and other byproduct materials generated primarily from the combustion of coal or other fossil fuels.”[Footnote 3: 42 U.S.C. § 6982(n).] Congress was concerned then, as it undoubtedly would be today, that such a listing would unfairly burden coal

- fired EGUs and as a result would diminish an important domestic energy

source

– while being unnecessary to protect human health or the environment. EPA has
conducted a number of studies and issued determinations since that time all supporting the exemption of CCRs from regulation under Subtitle C. The first Report to Congress (“RTC”) was published in 1988 and addressed the eight study factors required under Section 8002(n) of RCRA for CCRs from electric utilities. Based on the RTC, EPA developed the following three preliminary findings: 1) Large

- volume wastes

– The majority of materials present in the four largevolume wastes are not of major concern. Although trace constituents in the wastes may, in some instances, prese nt risks to human health and the environment, EPA’s review of the data suggested that these wastes rarely do not exceed the RCRA TC thresholds [Footnote 4: In evaluating Large

- Volume Coal

Fired Utility Wastes, EPA said, "The Agency has determined that thes e wastes exhibit the characteristics of hazardous waste infrequently, from 0 to 7 percent of the samples depending on the waste type," and that this analysis indicates that the “waste[s] rarely exhibit any characteristics of hazardous waste and the waste p ose very limited risk to human health or the environment...” 58 Fed. Reg. 42,446, 42476 (Aug. 9, 1993) (emphasis added).] In addition, the RTC concluded that current waste management practices appear to be adequate for protecting
human health and the environ ment and that regulation of large volume CCRs under Subtitle C
was not warranted.139

2) Low

- volume wastes

– Several low

- volume wastes typically generated by coalfired electric utilities may exhibit the hazardous waste characteristics of corrosivity and toxici ty and that the Agency was considering removing the exemption for low

- volume wastes. 3) Waste utilization

– EPA concluded that waste utilization practices appeared to be conducted in an environmentally safe manner[Footnote 5: U.S. EPA, Report to Congress: Wastes from the Combustion of Coal by Electric Utility Power Plants, EPA/530

- SW

- 88

- 002 at ES

- 6

– ES

- 8 (Feb. 1988).]. EPA would eventually issue a regulatory determination in 1993 finding that the large volume
CCRs from coal

- fired EGUs should not be regulat ed under Subtitle C. The second report to Congress, issued in 1998, covered CCRs from coal

- fired EGUs that were disposed with other wastes, as well as CCRs from the non

- utility sector. On May 22, 2000, EPA published a Notice of Regulatory Determination on Wastes From the Combustion of Fossil Fuels. The determination applied to all remaining fossil fuel combustion wastes other than high volume CCRs from EGUs that were managed separately, which were addressed in the 1993 regulatory determination. In the May 2 000 determination, EPA concluded that: [T]hese wastes do not warrant regulation under subtitle C of RCRA and is retaining the hazardous waste exemption under RCRA section 3001(b)(3)(C). However, EPA has also determined national regulations under subtitle D of RCRA are warranted for coal combustion wastes when they are disposed in landfills or surface impoundments, and that regulations under subtitle D of RCRA (and/or possibly modifications to existing regulations established under authority of the Surface M ining Control and Reclamation Act (“SMCRA”)) are warranted when these wastes are used to fill surface or underground mines [Footnote 6: For a more complete discussion of the 1993 and 2000 determinations, please see Sec. III D. 1. a. Notice of Regulatory
De termination on Wastes From the Combustion of Fossil Fuels, 65 Fed. Reg. 32,214, 32,214 (May 22, 2000).]. Given the issues studied and the consideration of how CCRs should be regulated under RCRA over the years, the Agency’s current proposal to list CCRs de stined for disposal as “Special Wastes” subject to RCRA Subtitle C is at odds with its prior determinations, not supported by the data in the administrative record, and does not comply with the applicable legal requirements for regulating solid wastes unde r Subtitle C

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08244

- 5 

### Organization 1 

### : Edison Mission Energy, LLC 

### Commenter 1 : Basil G. Constantelos Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2. 1.1 2.1.4 

### Comment Excerpt Text: D. EPA’s Subtitle C Proposal Is Premised On A Dramatic Overstatement Of The Risks Posed By
CCRs140

In addition to its unjustified lumping of CCR materials into one class, this Section explains why, based on the data presented in the record, EPA has not satisfied its burden under RCRA of establishing that the CCRs (whether considered in the aggregate or individually) “typically or frequently are hazardous.”[Footnote 61: 40 C.F.R. § 261.11(b) (emphasis added).] EPA’s suggestion t hat these materials pose a substantial risk is premised on: (1) a risk assessment that dramatically overstates the real risks posed by CCRs, and (2) a limited number of damage cases that EPA claims show the dangers posed by these materials (see Section III .D.2 below), even though those damage cases are not relevant to the risks posed by these materials based on their
inherent characteristics. 1. To Support Its Determination That Subtitle C Applies, EPA’s Recent CCR Risk Assessment Relies On Overly Conservat ive Assumptions That Are Plainly Inconsistent With Prior
Assessments EPA justifies its proposal to regulate CCRs under Subtitle C based in large part on the results of its 2003 risk assessment, which it alleges supports a determination that these materials should be subject to the hazardous waste generation, storage and disposal requirements of Subtitle C. EPA’s new assessment is problematic because (i) it represents a 180

- degree reversal from prior assessments prepared by the Agency looking at CCR disposal issues, and (ii) it relies on unrealistic, overly conservative assumptions and modeling to support its risk conclusions (i.e. scenarios that are atypical and infrequent, to the extent that they would ever arise in the real world). As such, the administrat ive record developed by EPA does not support its proposal to regulate CCRs under Subtitle C.
a. Prior CCR Assessments In October, 1980, Congress amended RCRA, adding a provision, known as the Bevill Amendment, to temporarily exclude large volume wastes fro m fossil fuel combustion from regulation under Subtitle C unless/until EPA conducted a study that considered the following eight factors as a prerequisite to taking any such regulatory action:[Footnote 62: See Section III.A above for a more complete discus sion of the legal implications of the Bevill amendment.] 1. Sources and volumes of such materials generated per year; 2. Present disposal and utilization practices; 3. Potential danger, if any, to human health and the environment from the disposal and reus e of such materials; 4. Documented cases in which danger to human health or the environment from surface runoff or leachate has been proven; 5. Alternatives to current disposal methods; 6. Costs of such alternatives; 7. Impact of those alternatives on the use of coal and other natural resources; and 8. Current and potential utilization of such materials. Congress gave EPA six months to complete the study required by the Bevill Amendment. EPA issued an initial temporary exclusion, pending a report to Congres s that was eventually issued in 1988. No further action was taken until a lawsuit was filed to compel the Agency to make a formal regulatory determination. EPA entered into a consent decree with all parties to that litigation that provided a schedule for m aking regulatory determinations on two separate categories of wastes. EPA would first make a determination regarding fly ash, bottom ash, boiler slag, and FGD wastes, by August 2, 1993. EPA agreed to make a determination on all other
wastes under the Bevil l Amendment by April 1, 1998, although that deadline was subsequently extended [Footnote 63: EPA presents the full chronology of its prior regulatory actions with141

respect to CCRs in Appenix A of its Regulatory Risk Assessment, including a complete history of the various determinations. See EPA, Appendix for Regulatory Impact Analysis, 4

- 6 (April 30, 2010).]. In 1993, EPA issued its first official regulatory determination that regulation of CCR materials under Subtitle C was not appropriate for fly ash, bott om ash, FGD wastes, and boiler slag [Footnote 64: 58 Fed. Reg. 42,466

- 67.]. EPA based this determination on its conclusion that (i) the materials posed low risks, (ii) there were sufficient state and federal regulatory controls,[Footnote 65: EPA reviewed r egulations in the 17 states that represented approximately 70 percent of coal ash in the U.S., and found that all but one required operating permits, 12 had mandatory liner and groundwater monitoring requirements, and three states had authority to impose l iner requirements on a case

- by

- case basis. 14 regulated CCRs as solid wastes, two had requirements based on waste characteristics, and one exempted CCRs completely. As a result, EPA found that “State regulatory programs are generally adequate.” Id. At 42,4 76.] and (iii) the risks from the wastes were dictated by site

- specific characteristics at disposal sites, such as groundwater flow and soil properties, rather than uniform characteristics inherent to the residuals themselves, such that regulating CCR mate rials as hazardous wastes was neither scientifically sound nor justified as a matter of policy [Footnote 66: “Since [CCR] sites vary widely in terms of topographical, geological, climatological, and hydrological characteristics (e.g., depth to groundwater, annual rainfall, distance to drinking water sources, soil type) and the wastes' potential to leach into the groundwater and travel to exposure points is linked to such factors, it is more appropriate for individual States to have the flexibility necessary to tailor specific controls to the site or region specific risks posed by these wastes.” Id. at 42,477]. The Agency noted that although there were a few groundwater samples which exceeded drinking water standards, they would not likely lead to any human e xposures at that level due to dispersion in the groundwater and a lack of drinking water sources downstream of coal plants or disposal sites [Footnote 67: Id. at 42,475.]. In addition, the agency estimated that the cost to industry of listing under subtitl e C could increase from $800 million annually under the existing disposal framework to between $3.7 and $5 billion [Footnote 68: Id. at 42,467

- 68.]. At the time, the Agency did not take a position on regulation under Subtitle D, but when it was presented with the suggestion that CCR landfills and impoundments be regulated similarly to MSW landfills (40 CFR part 258), EPA responded that: [w]hile the Agency believes that design and operating requirements similar to part 258 may be appropriate for some...[CCR] waste management units, the risks posed by...[CCR] waste management are site

- specific. Although groundwater contamination has occurred at certain coal combustion waste sites, contamination has been due to a limited number of constituents, which are likely to attenuate and dilute to safe levels before reaching an exposure point. This is in contrast to municipal solid waste landfills that are subject to 40 CFR part 258. The leachate at these sites often contains elevated levels of a wide range of toxic pollutan ts, and numerous damages have been observed. Therefore, the Agency believes that the level of protection provided by the part 258 criteria may not need to be universally applied to all...[CCR] waste management units. It is therefore appropriate to allow the States to retain the flexibility to tailor requirements to site

- specific or regional factors rather than establish broad Federal minimum requirements. It should be noted that many States have adopted regulatory requirements for...[CCR] waste management units comparable to the part 258 criteria. EPA will consider these wastes as part of the Agency’s ongoing assessment of industrial non

- hazardous wastes under RCRA Subtitle D [Footnote 69: Id. at 42481 (emphasis added).].142

EPA published its next risk assessment, for combined wastes and other non

- utility fossil fuel wastes, in 1998 in draft form. Based on the analysis in the 1998 draft risk assessment, EPA issued a report to Congress recommending against Subtitle C regulation, with the possible exception of the agr icultural use of CCRs [Footnote 70: EPA, Report to Congress Wastes from
the Combustion of Fossil Fuels Volume 1

– Executive Summary, 3

- 5 (March 1999).]. In the 1998 draft risk assessment and the associated report to Congress, EPA concluded that risks were below the toxic and cancer risk levels of concern, with only arsenic generating cancer risks in EPA’s Monte Carlo model of greater than 1x10

- 6, ranging from 4x10

- 5 to 2x10

- 5 [Footnote 71:
Id. at 3

- 2

- 3

- 3 (March 1999).]. However, EPA received numerous tec hnical comments on the groundwater transport model, EPACMTP, that it was unable to address in time to meet the consent decree timeline for releasing its final regulatory determination on the remaining waste categories. As a result EPA did not base its 2000 determination on the results of the EPACMTP model, for fear that it was inaccurate. EPA concluded that its 1998 leachate modeling (based on the EPACMTP model) overestimated generation and concentrations over time, in part because it was based on a small s ample size that gave an overly strong weight to a single facility’s worst

- case observation, and thus may not have accurately reflected actual leachate conditions [Footnote 72: EPA, Ground

- Water Pathway Human Health Risk Assessment, p. 8

- 2 1998 (Revised Dra ft Final).]. Therefore, EPA instead relied on surveys of hazardous constituents in CCRs, noting that samples of CCR wastes rarely
exceeded hazardous waste characteristic levels: Fossil fuel wastes infrequently exceed the hazardous waste characteristic. For comanaged wastes, 2% (1 of 51 samples) exceeded the characteristic level. For individual wastes streams, 0% of the coal bottom ash, 2% of the coal fly ash, 3% of the coal flue gas desulfurization, and 7% of the coal boiler slag samples that were tested ex ceeded the characteristic level [Footnote 73: 65 Fed. Reg. at 32,222.]. At the time, the only concern expressed by the Agency related to the potential for the leaching of arsenic out of the CCR materials. However, in 1993 EPA found that improvements in sta te and federal regulation would likely address the outstanding concerns: Nonetheless, given most of the states’ current regulatory capabilities and the evidence that basic controls are increasingly being put in place by the states and facilities (see RCRA section 8002(n), which directs EPA to consider actions of state and other federal agencies with a view to avoiding duplication of effort), EPA believes that subtitle D controls will provide sufficient clarity and incentive for states to close the remaining gaps in coverage, and for facilities to ensure that their wastes are managed properly [Footnote 74: Id. at 32,217.]. In addition to the preceding considerations, EPA based its 2000 decision, in part, on a desire to
not reduce the beneficial reuse of CCRs , recognizing that a Subtitle C listing had the potential to negatively impact such use: Normally, concerns about stigma are not a deciding factor in EPA’s decisions under RCRA, given the central concern under the statute for protection of human health and the environment. However, given our conclusion that the subtitle D approach here should be fully effective in protecting human health and the environment, and given the large and salutary role that beneficial reuse plays for this waste, concern over stigm a is a factor supporting our decision today that [S]ubtitle C regulation is unwarranted in light of our decision to pursue a [S]ubtitle D approach [Footnote 75: Id.]. In sum, EPA’s prior evaluations of the hazards posed by CCR materials clearly demonstrate that Agency had concluded that these materials are not “typically or frequently” hazardous. Yet, EPA143

dismisses these prior determinations here without sufficient justification why these materials suddenly present a hazard to human health or the environmen t

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08247

- 9 

### Organi zation 1 

### : Tucson Electric Power Company 

### Commenter 1 : Erik Bakken Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.2 

### Comment Excerpt Text:
EPA MAY NOT REVERSE ITS FINAL REGULATORY DETERMINATIONS THAT
CCRs DO NOT WARRANT REGULATION UNDER RCRA SUBTITLE C

EPA determined on four separate occasions, most recently in 2000, that the regulation of CCRs
as a hazardous waste is not warranted. EPA als o determined that regulation as non

- hazardous waste (RCRA, Subtitle D) is the appropriate option for ensuring the safe management of CCRs and is fully effective in protecting human health and the environment. In the May 2000 Regulatory Determination EPA co ncluded that CCRs waste rarely exhibit a hazardous waste characteristic. EPA?s 2000 final Regulatory Determination for CCRs completed the Bevill determination process pursuant to the prescribed statutory procedures. TEP agrees with EPA?s May 2000 determina tion that CCRs should be regulated as non

- hazardous waste under Subtitle D of RCRA. TEP disagrees with EPA?s proposed Subtitle C option which attempts to reverse EPA?s previously completed determinations that were made pursuant to the statutory prescribed procedures. TEP requests that EPA stand by its May 2000 Regulatory Determination for CCRs, by promulgating federal non

- hazardous rules for the disposal of CCRs. The statute does not authorize EPA to reverse these final Regulatory Determinations. The Subtit le C option attempts a reversal of these final Regulatory Determinations which does not comply with the Bevill Amendments statutorily

- prescribed decision

- making process. TEP requests that the current EPA administration adhere to the final Regulatory determ inations of previous EPA administrations which followed the direction of Congress.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR un der subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is t o be made are outside the scope of this rulemaking at this time.144



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08255

- 2 

### Organization 1 

### : LG&E and KU Energy LLC 

### Commenter 1 : Robert J. Ehrler on behalf of Dorothy E. O'Brien Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: III.Regulation of Coal Combustion Residuals under Subtitle C of RCRA is Improper and
Unwarranted.

The Bevill Amendmen t to RCRA provides that CCRs shall not be regulated under Subtitle C until and unless EPA has submitted a comprehensive study to Congress assessing the environmental risks, if any, posed by CCRs and made a final regulatory determination in favor of
Subtitl e C regulation. 42 U.S.C. Section 6921(b)(3). The process specified in the statute reflects Congressional intent that EPA should avoid any regulatory actions that unduly impede the use of coal. This concern is of critical importance for a state like Kentuc ky which relies on coal

- fired generation for more than 92% of its electricity. EPA undertook the requisite studies and submitted reports to Congress in 1988 (for certain large volume CCRs) and 1999 (for the remaining CCRs). In both reports, EPA concluded t hat Subtitle C regulation of CCRs was inappropriate; EPA issued corresponding regulatory determinations in 1993 and 2000 holding that Subtitle C regulation of CCRs was unwarranted. In the present situation, EPA is proposing a Subtitle C regulatory option t hat would reverse EPA’s previous final regulatory determinations, despite the lack of any authority under RCRA for regulatory “do

- overs,” and without following the statutorily prescribed process for making a regulatory determination. Not only has EPA faile d to provide a reasoned explanation for reversing its previous regulatory determinations that Subtitle C regulation was inappropriate, but it also concedes that the environmental protection measures under the Subtitle C and Subtitle D options outlined in t he Proposed Rule are virtually identical, thus contravening the statutory directive that EPA not unnecessarily impede the use of coal through Subtitle C regulation. EPA’s rationale for the Subtitle C option rests on the flawed logic that the approach will increase beneficial reuse (see specific comments in section V below) and the cost estimates in EPA’s Regulatory Impact Analysis are flawed on similar grounds. In considering the listing of CCRs as a hazardous waste, EPA has used flawed methodologies that
d o not reflect the low risks posed by CCRs. See Kentucky Comments, pp. 2

- 3. The Electric
Power Research Institute and others have conducted extensive research that demonstrates the

non

- hazardous nature of CCRs. EPA’s recent conclusions are directly contradi cted by the findings in its previous reports to Congress and regulatory determinations. In summary, the Subtitle C option proposed by EPA must be rejected as arbitrary and capricious, inconsistent with the authority granted to EPA under RCRA, and in viola tion of applicable law.

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made145

on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08270

- 4 

### Organization 1 

### : Cliffs Natural Resources Inc. (Cliffs) 

### Commenter 1 : David Z. Skolasinski Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 3.1.2 2.1.1 

### Comment Excerpt Text: EPA's 1993 And 2000 Bevill Determinations Regarding CCRs

On August 9, 1993 , EPA published is Regulatory Determination for the first category of CCR wastes (58 Fed. Reg. 42,466) and determined that regulation under Subtitle C ofRCRA for these wastes was not wal1'anted. On May 22, 2000, EPA published its Regulatory Detelmination for the remaining CCRs and concluded that the remaining wastes were largely identical to the high

volume monofilled wastes, which remained exempt based on the 1993 Regulatory Detelmination. The high volume wastes simply dominate the waste characteristics even when co

managed with other wastes, and thus, the May 2000 Regulatory De termination addressed not only the remaining wastes, but effectively reopened the decision on CCRs that went to monofills. While some risks were aclmowledged to be associated with these wastes, EPA fmiher concluded that significant improvements were being made in waste management practices due to increasing state oversight. On this basis, EPA chose to retain the Bevill exemption for CCRs, and the wastes would be regulated under Subtitle D of RCRA as solid wastes.

The Bevill Amendment to the Clean Air Act established a one

- time special process for making Bevill regulatory determinations for large volume, low toxicity wastes such as CCRs, and the

one

- time determination is well founded in case law (Solite Corp. v. EPA). In addition, a statutory

- mandated Bevil l process must be followed before a Bevill exemption determination can be reversed. To reverse a Bevill exemption determination for a waste EPA must: 1) study the waste pursuant to eight study factors, 2) submit a repOli to Congress, 3) conduct public hear ings and provide an opportunity for comment on the report, and 4) if EPA determines that a change in the Bevill exemption for the waste is warranted, then it must engage in a notice and comment regulatory procedure to promulgate the regulations. EPA has no t implemented this procedure since the 1993 and 2000 determinations. Therefore, at this time EPA cannot legally reverse its 1993 and 2000 Regulatory Determinations for CCRs and pursue a Subtitle C hazardous waste designation for CCRs. For these reasons Cli ffs urges EPA to abandon its consideration of a Subtitle C determination for CCRs in this rulemaking.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preamble for a discussion on our decisi on to regulate CCR under subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevi ll Determination is to be made are outside the146

scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08270

- 6 

### Organization 1 

### : Cliffs Natural Resources Inc. (Cliffs) 

### Commenter 1 : David Z. Skolasinski Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.1.1 10.2.1 

### Comment Excerpt Text: Cliffs Supports EPA's Decision Not To Reverse The Regulatory Determination For Beneficial
Uses Of CCRs

From the very beginning of the proposed rule, EPA states that it is "not proposing to change the May 2000 Regulatory Determination for beneficially used CCRs" (75 Fed. Reg. at 35,128 and 75 Fed. Reg. at 35,160). NMA strongly supp0l1s the agency's decision. Currently, more than 50 million tons of CCRs (nearly 45 percent) are beneficially used. As EPA is keenly aware, the beneficial use of CCRs provides tremendous societal and environmental benefits. To name a few, these benefits include: reducing the amount of green space disturbed for the mining of virgin materials, eliminating the need for larger disposal sites, and creating sustainable products in a way that decreases the emission of greenhouse gases.

EPA's May 2000 Regulatory Determination recognized th e following beneficial uses: Beneficial purposes include waste stabilization, beneficial construction applications (e.g., cement, concrete, brick and concrete products, road bed, structural fill, blasting grit, wall board, insulation, roofing materials), agricultural applications (e.g., as a substitute for lime) and other applications (absorbents, filter media, paints, plastics and metals manufacture, snow and ice control, waste stabilization).

65 Fed. Reg. at 32,229. EPA provides no reasoned justificati on for reversing course and regulating any of the beneficial uses listed above. EPA should maintain its position in the final rule and not regulate these beneficial uses of CCRs.

Response: The Agency acknowledges and appreciates the comment.



### Commen t Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08418

- 3 

### Organization 1 

### : Commenter 1 : Annely Noble Commenter Type: Private Citizen
Classification: Substantive Comment Category:147

Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text:

The EPA declared coal combustion residuals to be non

- hazardous in both 1993 and again in 2000; why is EPA revisiting this decision in 2010 and considering reclassifying CCRs as
hazardous waste? This does not make sense!

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



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08826

- 6 

### Organization 1 

### : Duquesne University School of Law 

### Commenter 1 : Kirk W. Junker Commenter Type: Academia
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

The timef rame for consideration of the hazardous properties of coal fly ash in Europe is also roughly parallel to the US. In March of 1999, the EPA examined the classification of fly ash waste, as a coal combustion waste, determining that it does not necessitate re gulation as a hazardous waste under Subtitle C of RCRA because of adequate state regulation; therefore limiting RCRA regulation to that of Subtitle D substances. [Footnote 5: Fossil Fuel Combustion Waste, US EPA, http://www.epa.gov/osw/nonhaz/industrial/sp ecial/fossil/]. Just one year later, the European Commission also classified coal fly

- ash as non

- hazardous in the European Commission Decision of May 3, 2000. [Footnote 6: 2000/532/EC]. However

— and this is a big
however

— European Commission Regulation 1013/ 2006 [footnote 7: Passed by the European Parliament and European Council, January 14, 2006] explicitly prohibits the shipment of coal

fired powerplant fly ash in compliance with the Basel Convention’s Article 36. And this brings me to my third point.

If the European Commission classified fly

- ash as non

- hazardous in 2000, why does it prohibit shipping it? Because as we all know from our own federal regulations, the way in which a material is handled may also determine that it is hazardous. [Footnote 8: 40 CFR 261.10]. Just as the European Union reconsidered its earlier decision from the year 2000, we now have the opportunity to reconsider the EPA’s March 1999 examination and determination that neither large

- volume wastes nor remaining fossil fuel combustion wastes, such as fly ash, warranted hazardous waste designation under Subtitle C of RCRA. In 1999, existing state regulatory were thought to be sufficient. In 1999, existing state controls revealed that the majority of states had the authority to impose ph ysical controls and monitoring requirements on coal combustion waste landfills and impoundments on at least a case by case basis. [Footnote 9: Technical Background Document for the Report to Congress on Remaining Wastes from Fossil Fuel
combustion: Existi ng State Regulatory Controls, March 15, 1999, US EPA,148

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ffc2_396.pdf]. However, pursuant to the report, in 1999, 44 of 50 states exempted coal combustion wastes from hazardous waste regulations, leavin g the majority of regulation of this material to state

- led RCRA Subtitle D waste programs. [Footnote 10: Id.]. Political times have changed and it is time to use available science and legal tools to take notice of that.

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



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08840

- 11 

### Organization 1 

### : Electric Power Generation Association 

### Commenter 1 : Douglas L. Biden Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: IV. EPGA Endorses the Subtitle D Option

As discussed previously, EPGA believes that regulation of CCRs under RCRA Subtitle C is inappropriate and inconsistent with EPA's previous findings that CCRs do not warra nt regulation as hazardous wastes. We believe that the second option provided in this proposed rulemaking, regulation of CCRs destined for disposal under RCRA Subtitle D, is the more appropriate regulatory method, and is consistent with EPA's rulemaking re cord. EPGA does have some concerns with the proposed Subtitle D option, which we will explain in detail below.

A. Appropriateness of Subtitle D

EPA was directed by Congress under the Solid Waste Disposal Act to conduct a comprehensive study of CCRs to de termine the environmental risks, if any, that these materials posed, and report back with their findings. Until such time that the study was complete, these materials were subject to regulation under applicable federal and state disposal provisions, in lie u of RCRA
Subtitle C.

EPA soon realized that the magnitude of such a study was so large that it needed to divide the study into two phases in order to meet the schedule mandated by Congress. The initial phase addressed the four large

- volume CCRs generated by coal

- fired electric generators, which included fly ash, bottom ash, boiler slag and flue gas emission control wastes. The second phase then covered the remaining CCRs generated by electric utilities and non

- utilities. This study phase would also includ e the four large

- volume CCRs when co

- disposed with these other remaining CCRs.149

On March 8,1988, EPA reported to Congress, under the first phase of the study, that "EPA does not intend to regulate under [RCRA] Subtitle C fly ash, bottom ash, boiler slag, a nd flue gas desulfurization wastes." 1988 Report to Congress at ES

- 6 (emphasis added).

On August 9, 1993, EPA published its initial final Regulatory Determination for CCRs, an additional mandated requirement from Congress. EPA concluded that RCRA Subtitle C regulation of the four large

- volume CCRs

- fly ash, bottom ash, boiler slag, and flue gas
desulfurization waste

- was not warranted. 58 Fed. Reg. 42466.

In March of 1999, EPA provided its Report to Congress on the remaining wastes studied under
the sec ond phase of the Congressionally mandated study. In this second report, EPA reiterated its earlier findings "that [RCRA] Subtitle C is inappropriate to address any problems associated with disposal of these wastes and that the continued use of site and reg ion specific approaches by the states is more appropriate for addressing the limited human health and environmental risks that may be associated with disposal of these wastes." 1999 Report to Congress at 3

- 5 (emphasis added).

Finally, on May 22, 2000, EPA completed its Congressionally

- mandated statutorial requirements with its final Regulatory Determination for all remaining fossil fuel combustion wastes, including CCRs managed with certain low

- volume wastes. 65 Fed. Reg. 32214. In this final
Determination , EPA again concluded, consistent with its previous findings and with its second Report to Congress, that CCRs and other fossil fuel combustion wastes did not warrant regulation under RCRA's Subtitle C hazardous waste program. EPA further concluded that
de velopment of national non

- hazardous waste regulations under RCRA Subtitle D is the appropriate disposal method for CCRs disposed in landfills and surface impoundments. Id.

Thus, it is obvious to EPGA that the second option provided in this current propose d rulemaking, regulation of CCRs destined for disposal under RCRA Subtitle D, is consistent with the rulemaking record, and is the only logical and appropriate regulatory method

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



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08844

- 14 

### Organization 1 

### : National Mining Association (NMA) 

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



### Comment Excerpt Text:

IV. NMA'S COMMENTS ON EPA'S PROPOSED APPR OACH TO BENEFICIAL USES OF
CCRS150

A. NMA Supports EPA's Decision Not To Reverse the Regulatory Determination for Beneficial
Uses of CCRs

From the very beginning of the proposed rule, EPA states that it is "not proposing to change the May 2000 Regulatory De termination for beneficially used CCRs." 75 Fed. Reg. at 35,128; See also 75 Fed. Reg. at 35,160. NMA strongly supports the agency's decision. Currently, more than 50 million tons of CCRs (nearly 45 percent) are beneficially used. [FN 15: NMA was disappoin ted to read that EPA does not consider placement of fill in mines to be a beneficial use. See 75 Fed. Reg. at 35,212 n.155. According to EPA, the definition of beneficial use touted by the ACAA "does not align with that used by EPA in this rulemaking." ACA A includes mine applications as a beneficial use. The agency, however "classifies it as a separate category of use." NMA disagrees with EPA's position. In its Regulatory Determination, EPA even acknowledges that "when done properly, minefilling can lead to substantial environmental benefits." 65 Fed. Reg. at 32,217. EPA further recognizes that "reuse when performed properly, is by far the environmentally preferable destination for these wastes, including when minefilled." [d. EPA's
statements to the contrar y in this proposed rule are unfounded and misplaced, particularly since this rulemaking is not intended to address the use of CCRs at coal mining operations.] As EPA is keenly aware, the beneficial use of CCRs provides tremendous societal and environmental benefits. To name a few, these benefits include: reducing the amount of green space disturbed for the mining of virgin materials, eliminating the need for larger disposal sites, and creating sustainable products in a way that decreases the emission of gre enhouse gases.

EPA's May 2000 Regulatory Determination recognized the following beneficial uses:

Beneficial purposes include waste stabilization, beneficial construction applications (e.g., cement, concrete, brick and concrete products, road bed, structu ral fill, blasting grit, wall board, insulation, roofing materials), agricultural applications (e.g., as a substitute for lime) and other applications (absorbents, filter media, paints, plastics and metals manufacture, snow and ice control, waste stabiliza tion).

65 Fed. Reg. at 32,229. NMA is aware of one non

- coal mining operation that mixes CCRs into concrete and uses the concrete in mine workings as structural fill. This use is a beneficial use as described in the Regulatory Determination. EPA provides n o reasoned justification for reversing course and regulating this use or any of the beneficial uses listed above in the Regulatory Determination. EPA should maintain its position in the final rule and not regulate these
beneficial uses of CCRs

Response: T he 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

- 08844

- 9 

### Organization 1 

### : National Mining Association (NMA) 

### Commenter 1 : Tawny A. Bridgeford Commenter Type: Trade Association
Classification: Substantive151

Comment Category:
Current Task: Examine Context Assigned/Due:
Othe r Sections: 2.1.4 2.1.6 

### Comment Excerpt Text:

II. EPA'S REEXAMINATION OF THE BEVILL STATUS OF WASTES FROM THE
COMBUSTION OF FOSSIL FUELS

A. EPA Lacks the Authority to Reverse its 1993 and 2000 Bevill Regulatory Determinations Regarding CCRs

EPA proposes two alternative regulatory approaches for the regulation of CCRs. The so

- called Subtitle C option would require EPA to reverse its prior August 1993 and May 2000 Regulatory Determinations for CCRs. It is clear from RCRA, relevant case law, and EPA's prior positions in Bevill cases that EPA lacks the authority to reverse its August 1993 and May 2000 Bevill Regulatory Determinations regarding CCRs.

1. The Bevill Amendment Establishes a One

- Time Special Process For Making Bevill Regulatory Determinations

Co ngress enacted RCRA in 1976. Subtitle C of RCRA, 42 U.S.C. §§ 6921

- 6931, generally established a "cradle to grave" management scheme governing the generation, transportation, treatment, storage and disposal of the hazardous wastes that would be subject to this stringent RCRA Subtitle C program.

On December 18, 1978, EPA proposed regulations identifying hazardous waste under RCRA Subtitle C. 43 Fed. Reg. 58,946 (Dec. 18, 1978). EPA proposed to regulate wastes from fossil fuel combustion, including CCRs, as well as certain other wastes, as "special wastes." 43 Fed. Reg. at 59,015. The EPA 1978 proposal explained that special wastes would be subject to fewer regulatory requirements because they were generated in "very large volumes," "posed relatively
low" ris ks, and "were not amendable [sic] to the control techniques" proposed for hazardous waste treatment, storage and disposal. 43 Fed. Reg. at 58,992.

EPA abandoned the special waste concept, however, when the agency promulgated final hazardous waste regulati ons in 1980. 45 Fed. Reg. 33,084 (May 19, 1980). Thus, EPA's final rule, which was scheduled to take effect on November 19, 1980, would have treated CCRs as any other waste, subject to the full requirements of the final RCRA Subtitle C regulations.

Recogn izing the absurdity of regulating CCRs and other special wastes in such an inflexible, onerous manner, Congress stepped in before the effective date of the final Subtitle C regulations and provided relief in October 1980 with the Bevill Amendment. See 42 U .S.C. §§ 6921(b)(3)(A), (c)6982(n). As a counterpoint to EPA's prior actions described above, the Bevill Amendment established a special process which EPA was required to follow before CCRs and the other special wastes could be regulated as hazardous waste s under Subtitle C of RCRA. See also, Environmental Defense Fund v. EPA, 852 F.2d 1309, 1314 (D.C. Cir. 1988) (EDF) ("Indeed, our reading of the statute and legislative history strongly suggests that Congress designed the Bevill Amendment to break with the previous approach to regulation of hazardous152

industrial wastes.").

First, the Bevill Amendment established a temporary exemption from regulation under Subtitle C, until the completion of the study and submittal of the report described below. 42 U.S.C. § 6921(b)(3)(A). Congress directed EPA to conduct a "detailed and comprehensive study" on the adverse effects on human health and the environment of CCRs and other special wastes. 42 U.S.c. § 6982(n). In contrast to the manner in which EPA otherwise was goin g to decide how to determine if wastes were hazardous and subject to Subtitle C under the regulations that were to become effective on November 19, 1980, Congress expressly directed that the Bevill study include an analysis of:

1) the source and volumes o f CCRs generated per year;

2) present disposal and utilization practices;

3) potential danger, if any, to human health and the environment from the disposal and reuse of such materials;

4) documented cases in which danger to human health or the environm ent from surface runoff or leachate has been proved;

5) alternatives to current disposal methods;

6) the costs of such alternatives;

7) the impact of those alternatives on the use of coal and other material resources; and

8) the current and potential u tilization of such materials.

Third, Congress directed that EPA publish a report on such study, which was to include "appropriate findings," not later than 24 months after October 21, 1980. [d. The Bevill Report
was to be submitted to the Committee on Env ironment and Public Works of the United States Senate and the Committee on Energy and Commerce of the United States House of Representatives. [d.

Fourth, the Bevill Amendment further stipulated that within six months after the Report to Congress, EPA, aft er public hearings and the opportunity for comment, had to determine whether to promulgate regulations under Subtitle C for CCRs, or determine that such regulations were unwarranted. 42 U.S.C. § 6921(b)(3)(C). Finally, if EPA determined that such regulatio ns were warranted, EPA could then engage in notice and comment rulemaking to promulgate the Subtitle C regulations. See American Portland Cement Alliance v. EPA, 101 F.3d 772, 775 (D.C. Cir. 1996) ("Section 3001(b)(3)(C) provides that the product of the no tice and comment process [on the Report to Congress] will be a determination of whether regulation is warranted in the future, not regulations themselves.")

EPA failed to meet the Bevill Amendment's statutory deadline of October 21, 1980, for153

publication of a Report to Congress on fossil fuel combustion wastes. In Gearhart v. Reilly, No.
91

- 2435 (D. D.C. June 30, 1992), EPA entered into a Consent Decree which divided fossil fuel combustion wastes into two categories, and agreed to follow the Bevill process separately for the two categories. EPA had actually published its First Report to Congress on fossil fuel combustion wastes from coal fired utilities on March 8, 1988. 53 Fed. Reg. 9976 (Mar. 28, 1988). On August 9, 1993, EPA issued a regulatory determina tion that regulation of four large volume fossil fuel combustion wastes from coal fired utilities (fly ash, bottom ash, boiler slag, and flue gas desulfurization waste) as hazardous is "unwarranted" under RCRA Subtitle C. 58 Fed. Reg. 42,466.

In the secon d phase of the Bevill utility industry process, EPA addressed issues of co

management, ash derived from co

- burning of coal from non

- hazardous solid waste, ash derived from clean coal combustion, and combustion residues from burning oil and natural gas. EPA submitted its second utility Report to Congress on March 31, 1999. 64 Fed. Reg. 22,820 (April 28, 1999). On April 25, 2000, EPA issued its Phase II Regulatory Determination. 65 Fed. Reg. 32,214 (May 22, 2000). EPA concluded in the Phase II Bevill Regulato ry Determination that hazardous waste regulation under Subtitle C for the remaining fossil fuel combustion wastes "[was] not warranted." 65 Fed. Reg. at 32,215. EPA reserved the right to revise this determination. See Id. at 32,215 & 32,218.

An analysis o f the Bevill Amendment reveals that the above

- described special Bevill process established by Congress provided for a one

- time evaluation of CCRs and the other special wastes that cannot be subsequently reversed. First, the Bevill Amendment by its terms ca lls for a "study" and a "report." 42 U.S.C. §§ 6982(n). The use of the singular, as well as the statutory context, means that Congress deliberately established a one

- time study and one

- time Report to Congress obligation. Similarly, Congress called for a on e

- time regulatory determination when it stated that "not later than six months after the date of submission of the applicable study" EPA should "either determine to promulgate regulations ... or determine that such regulations are unwarranted." 42 U.S.C. § 6921(b)(3)(C).

Second, Congress made it clear it was establishing a one

- time study, report and regulatory determination obligation when it required that the report and study be completed by a date certain, i.e., October 21, 1980. 42 U.S.C. § 6982(n). Fin ally, the Bevill Amendment established a temporary exemption from RCRA Subtitle C regulation for the special wastes, an approach
consistent with a one

- time study, report, and regulatory determination. 42 U.S.C. § 6921(b)(3)(A). If Congress had intended to extend the Bevill process thirty years beyond the 1980 date Congress established for completion of the Bevill study and report, Congress would have done so explicitly. That Congress did not do so, further confirms that it intended that the Bevill process c onsist of a one

- time report, study, and regulatory determination for CCRs.

Accordingly, with the issuance of the 2000 Regulatory Determination, the Bevill process for fossil fuel combustion wastes, including CCRs, was completed. For all the above reasons, the
Bevill Amendment established a one

- time study, report, and regulatory determination for CCRs. Accordingly, EPA lacks the authority to reverse its 1993 and 2000 Regulatory Determinations. Any attempt by EPA to do so in the final rule would be unlawful154

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08855

- 1 

### Organization 1 

### : Colstrip Energy Limited Partnership (CELP) 

### Commenter 1 : R. Lee Roberts Commenter Type: Electric Utility Facility
Classification: Substantive
Comment Cat egory: Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: EPA Once Recognized One Size Does Not Fit All Landfills EPA's two proposed rule

- makings (both RCRA subtitle Cand subtitle D) each appear to try to impose one uniform set of requirements upon all entities which would be subject to those rules. Such an approach in CELP's opinion does not reflect reality. Aside fr om the obvious difference between sludge impoundments and dry ash landfills, there are material and significant differences between ash from Pulverized Coal Units ("PCUs") and ash from Fluidized Bed Combustors ("FBCs"). As EPA in its 1993 Final Regulatory Determination on Four Large

Volume Wastes from the Combustion of Coal by Electric Utility Power Plants (58 FR No. 151) observed at page 42,469: "Finally, for the purposes of this action, large

- volume wastes from coal

- fired electric utilities do
not includ e wastes generated from fluidized bed combustion (FBC) boiler units. FBC is a relatively new combustion technology that allows for the removal of sulfur without an end

- of

pipe scrubber. The wastes generated by this technology were not studied in the RTC, a nd only limited information regarding their characteristics and management has been collected to date. The information that is available has not provided EPA with enough evidence to conclude that waste generated from FBC units is substantially similar to c onventional boiler wastes. Some sources maintain that FBC units that burn solely coal as a fossil

- fuel source generate fly ash and spent bed material that is substantially different from conventional boiler wastes. n5 This is because in FBC, coal is burned in the presence of limestone. The differences in the FBC wastes are defined by a presence of sulfur compounds and high amounts of residual alkalinity...."

EPA also concluded that further analysis of FBC waste was needed in order to reach conclusions

as t o the character of those wastes. "The information does indicate that the use of CFB technology in the electric utility industry may be increasing. Because of the current lack of data, the potential of the co

- firing of limestone to have a significant effec t on the characteristics of the wastes produced, and the potential for increased utilization of the technology, the Agency has decided to defer a decision on these wastes until further information from the growing number of facilities can be examined.
Ther efore, the Agency considers these wastes "remaining wastes," which are outside the scope of155

today's regulatory determination."

EPA in its 2000 Regulatory Determination on Wastes From the Combustion of Fossil Fuels; Final Rule (FR 65, p. 32,214) once agai n determined that regulation pursuant to subtitle CRCRA
was not warranted for FBC wastes: "In today's action, we are determining that regulation of fossil fuel combustion (FFC) wastes under subtitle C of the Resource Conservation and Recovery Act (RCRA) i s not warranted. This determination covers the following wastes: ***

- Coal combustion wastes generated at facilities with fluidized bed combustion technology;"

but decided to establish national regulations under subtitle D RCRA
"While these wastes rema in exempt from subtitle C, we have further decided to establish national regulations under subtitle D of RCRA (RCRA sections 1008(a) and 4004(a)) for coal combustion wastes that are disposed in landfills or surface impoundments or uses to fill surface or

u nderground mines...."

EPA observed at page 32,216 that site

- specific characteristics should be considered when determining the applicable level of regulation for a specific facility: "We note, however, that some waste management units may not warrant li ners and/or groundwater monitoring, depending on site

- specific characteristics."

Unfortunately, in its current proposals EPA does not address the further analysis and study of the differences between PCU ash and FBC ash it once deemed appropriate as disc ussed above, does not differentiate between them, and does not recognize that site

- specific characteristics can materially alter requirements. CELP strongly encourages the EPA to complete the analysis on the
differences between PCU ash and FBC ash before f inalizing the CCR rule. Completing this analysis is necessary before including FBC ash in this rule because it may pose significantly
lower risks to the environment.

Response: This comment is addressed in Volume 3 of the Response to Comment document on

a pplicability of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 9 

### Organization 1 

### : Prairie State Generating Company, LLC (PSGC) 

### Commenter 1 : Keith Bastian Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.1 

### Comment Excerpt Text: The essential flaw in the Subtitle C option is that it is premised on the notion that EPA is at liberty to reverse its final Regulatory Determination that CCRs do not warrant regulation under Subtitle C of RCRA. Because the statute does not authorize EPA to reverse its final Regulatory156

Determination, EPA may not adopt the Subtitle C hazardous waste option for CCRs. Even assuming for purposes of argument that the statute did au thorize such reversal, EPA's proposal to regulate CCRs under Subtitle C does not comport with the Bevill Amendment's statutorily prescribed decision

- making process and would be arbitrary and capricious. For example, the Subtitle C option would adversely im pact CCR beneficial use and impose unwarranted and excessive costs on the utility industry.

Response: The Agency acknowledges and appreciates this comment. 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

- 09281

- 15 

### Organization 1 

### : Exelon Power 

### Commenter 1 : Victoria K. Will Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: c. Regulation under Subtitle D is consistent with applicable law and the rulemaking record.

As required under the Bevill Amendment, EPA submitted two prior reports to Congress addressing the appropriate regulatory regime for CCR. See 42 U.S.C. § 6982(n). These reports, submitted in 1988 and 1999, preceded two previous Regulatory Determinations, issued in 1993 and 2000. Under these Regulatory Determinations, EPA concluded that regulation under Subtitle C of RCRA is inappropriat e for CCR, and that Subtitle D can address the environmental and public health and safety concerns associated with CCR disposal. Exelon believes that EPA should implement a regulatory paradigm under Subtitle D, as that approach is consistent with the

proce dural requirements imposed by the Bevill Amendment, the prior Regulatory Determinations and the rulemaking record. These factors may help the Agency stave off legal challenges as to the implementation process for final CCR disposal rules. A brief summary o f key findings in the Regulatory Determinations, which were preceded by supporting Reports to Congress, and highlights from industry studies and comments from other regulators follows.

On August 9, 1993, EPA’s review of the proper regulatory regime for d isposal of fly ash, bottom ash, boiler slag and flue gas emissions control waste from the combustion of coal by electric utilities concluded with the determination that “Subtitle C is inappropriate to address the problems associated with these wastes and t hat the site or region specific state approach is appropriate for addressing the limited human health and environmental risks involved with the disposal of FFC wastes.” 58 Fed. Reg. 42466, 42477 (Aug. 9, 1993). In reaching this decision, EPA acknowledged t hat “coal combustion wastes rarely exceed RCRA characteristics for hazardous waste” and “[a] Subtitle C system would require coal combustion units to obtain a Subtitle C permit (which would unnecessarily duplicate existing state requirements) and would157

est ablish a series of waste design and operating requirements for these wastes, which would generally be in excess of requirements to protect human health and the environment.” Id. EPA did, however, indicate that it would continue to consider these wastes dur ing its ongoing
assessment of industrial non

- hazardous wastes under Subtitle D. Id.

When EPA issued a subsequent Regulatory Determination on May 22, 2000, addressing “remaining [coal combustion] wastes,” it determined that “national regulations under sub title D of RCRA are warranted for coal combustion wastes when they are disposed in landfills or surface impoundments.” 65 Fed. Reg. 32214 (May 22, 2000). EPA also concluded that a Subtitle D approach “should be fully protective of human health and the envi ronment.” 65 Fed. Reg. at 32233. Moreover, the record indicated that “the structure and the sanctions associated with a Subtitle D approach” were sufficient compliance incentives. Id. at 32217. EPA was also concerned about regulating CCR disposal in a mann er that could adversely impact the beneficial use of CCR, and acknowledged that concern was a factor “supporting our decision today that subtitle C regulation is unwarranted in light of our decision to pursue a subtitle D approach.”

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09358

- 2 

### 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:
Other Sections: 2.1.4 

### Com ment Excerpt Text: 2. The rulemaking record supports continued management of CCRs as non

- hazardous waste under RCRA Subtitle D as reflected in the two Final Reports to Congress prepared by EPA per direction from the Bevill Amendment to RCRA and the subsequ ent two Regulatory Determinations issued by EPA. For approximately the last 30 years, EPA has consistently found the Subtitle D approach, along with state involvement, to be the appropriate regulatory course for CCRs. EPA has not demonstrated that regulati on outside of this regulatory framework is appropriate. In fact, EPA indicates by its own actions that it supports a Subtitle D approach for the Kingston, Tennessee ash cleanup effort. As part of the approved cleanup plan, ash is being disposed as a non

- ha zardous waste at a Subtitle D landfill.

Response: The Agency acknowledges and appreciates the comment. 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.158



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09358

- 8 

### 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:
Cu rrent Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: WPL strongly opposes regulation of CCR under RCRA Subtitle C. 1. EPA has not demonstrated that regulation under RCRA Subtitle C is required for protection of
the enviro nment and human health. Following the passage of the Bevill Amendment to RCRA, EPA initiated studies of CCRs for more than 20 years which resulted in EPA Regulatory Determinations issued in 1993 and 2000. Both determinations reflected findings that CCRs di d not warrant regulation under RCRA Subtitle C. No additional determinations have been issued by EPA; hence, the proposal option to regulate CCRs under RCRA Subtitle C is inconsistent
with EPA's own determinations. Because coal is a national primary source of energy, Congress made clear in the Bevill Amendment to RCRA of their intent to be consulted in any EPA actions for CCR regulation, as well as directing that input from other federal agencies, states, and the general public should be sought. The EPA Sub title C option reflects total disregard of the nearly unanimous views of federal and state agencies that Subtitle C regulation is not warranted for CCRs. Included in this list of agencies is the WDNR which testified at the EPA public hearing in Chicago on this rulemaking. The WDNR CCR management program is nationally recognized and currently includes many of the provisions proposed under the RCRA Subtitle D option.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred t o Unit IV of today’s preamble for a discussion on our decision to regulate CCR under
subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09423

- 7 

### Organization 1 

### : American Forest and Paper Association (AF&PA) 

### Commenter 1 : Paul Noe Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: EPA Should Embrace its 2000 Determination that CCRs Should Be Regulated as Non

Hazardous Waste159

AF&PA strongly supports th e decision reached by the Clinton Administration in 2000 that coal combustion residuals should be regulated under Subtitle D

– the nonhazardous waste provisions

– of RCRA. We believe that EPA should continue down this path. Had the Agency completed
the rul es it said it would, appropriate management standards, engineering design, and integrity evaluation would have been in place. TVA would have had to change its CCR management

-- thus probably avoiding the 2008 catastrophic failure of its surface impoundment that prompted this rulemaking.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09423

- 8 

### Organization 1 

### : American Forest and Paper Association (AF&PA) 

### Commenter 1 : Paul Noe Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1 .2 

### Comment Excerpt Text: Our evaluation of the additional information developed by EPA subsequent to the 2000 determination is that the new data do not support the need for applying the onerous hazardous waste regulations to coal combustion byproducts. The damage cases discussed in this proposal do not raise questions about the movement of CCRs

– merely the proper disposal. As such,
CCRs do not warrant the cradle

- to

- grave approach that is embodied in the hazardous waste

program.

EPA admits in its discus sion of the Subtitle D rule that requirements proposed under Part 257 will be equivalent in protection to those under Part 264. EPA notes (see 74 Fed. Reg. at 35793) “Several of the provisions EPA is proposing under RCRA subtitle D either correspond to the provisions EPA is proposing to establish for RCRA subtitle C, or are modeled after the existing subtitle C requirements.” EPA will achieve basically the same level of protection under the Subtitle D program as it will under the Subtitle C program

– yet wi thout the impossibly onerous program that is inappropriate for CCRs.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09426

- 1 

### Organization 1 

### : Wisconsin Public Service 

### Commenter 1 : Connie K. Lawniczak Commenter Type: Electric Utility Company160

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.6 

### Comment Excerpt Text: The Bevill Amendment to RCRA, §3001(b)(3)(A)(i

- iii), is the controlling legal framework by which each of the regulatory options set forth in the current proposal must be evaluated. The
Bevill Amen dment establishes the statutory process by which Congress directed EPA to make a determination regarding whether CCRs warrant regulation under RCRA’s Subtitle C hazardous waste program. Following years of study, EPA completed the statutorily

- mandated Bevil l determination process for CCRs on May 22, 2000, concluding, based on two earlier Reports to Congress, that CCRs do not warrant regulation under RCRA’s Subtitle C hazardous waste regulations. See 65 Fed. Reg. 32214 (May 22, 2000). Instead, EPA determined that regulation of
CCRs as non

- hazardous waste under Subtitle D of RCRA would be fully effective in protecting
human health and the environment. The Subtitle C option would constitute a reversal of EPA’s final 2000 Regulatory Determination
that CCRs do not warrant hazardous waste regulation and would be in direct contravention of RCRA’s plain language establishing an unambiguous statutory process by which EPA can determine whether and how to regulate CCRs under RCRA. Having completed the Bevill
determinatio n process for CCRs in 2000 pursuant to the statutorily prescribed procedures, EPA is not at liberty to undo that process. Even assuming that the statute did allow EPA to make a new determination more than ten years after completing the Bevill process, EPA would at a minimum be obligated to adhere to the statutory procedures that Congress prescribed for making the original regulatory determination, including providing a Report to Congress setting forth its recommendation. EPA has ignored these procedures in the Subtitle C proposal.

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency ’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at thi s time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09530

- 9 

### Organization 1 

### : PSEG Power LLC and Public Service Electric and Gas 

### Commenter 1 : Eric B. Svenson Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: X. The Subtitle D Option is Consistent with the Rulemaking

The continuance of a Subtitle D regulatory program is consistent with the two EPA Reports to161

Congress, and the two fin al Regulatory Determinations EPA has issued pursuant to the Bevill Amendment, which determined CCRs do not warrant hazardous waste regulation under RCRA
Subtitle C.

Over the past 20 years EPA has consistently determined that a Subtitle D approach is the appropriate regulatory course for CCRs. In its CCR Regulatory Determination in 1993 and again in 2000, EPA concluded that the Subtitle D approach is most appropriate. EPA reaffirmed the appropriateness of Subtitle D option in the 2000 CCR Regulatory Determ ination, concluding that “Subtitle D regulations are the most appropriate mechanism......" [65 Fed. Reg. 32221] Furthermore, new production CCR’s rarely exhibit a hazardous waste characteristic, and as such do not warrant regulation as a listed hazardous was te under Subtitle C.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09532

- 2 

### Organization 1 

### : Natural Resource Partners LP 

### Commenter 1 : Nick Carter Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: NRP strongly opposes EPA's proposal to reverse the 1993 and 2000 Bevill regulatory determinations, which correctly found that CCRs should be regul ated as non

- hazardous wastes. EPA accurately concluded that Subtitle C hazardous waste designation was not appropriate for CCRs because it would result in unnecessarily duplicating existing state requirements and impose controls on CCRs "which would genera lly be in excess of requirements to protect human health and the environment." 58 Fed. Reg. 42466, 42477 (Aug. 9, 1993). A reversal of these determinations would unnecessarily jeopardize the beneficial re

- use industry and the jobs its supports, in addition to causing more, not less of the CCR's to be landfilled. In EPA's 1999 Report to Congress, it emphasized the difficulties associated with Subtitle C classification of
CCRs:

The agency has tentatively concluded that the co

- managed wastes generated at a co al

- fired utilities, including petroleum coke combustion wastes as well as wastes from other fuels co

- fired with coal, generally present a low inherent toxicity, are seldom characteristically hazardous, and generally do not present a risk to human health an d the environment...lf these wastes were listed as hazardous, and therefore regulated under Subtitle C, coal combustion units would be required to obtain a Subtitle C permit, which would unnecessarily duplicate existing State requirements,
and would establ ish a series of waste unit designation operating requirements for these wastes that would most often be in excess of requirements to protect human health and the environment. US EPA, Report to Congress on Wastes from the Combustion of Fossil Fuels, Vol. 2, 3

- 73 (1999).162

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09712

- 8 

### Organization 1 

### : Basin Electric Power Cooperative (BEPC) 

### Commenter 1 : Claire M. Olson Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: Background of the Bevill Amendment In 1980, Congress amended ("RCRA") with the passage of the Bevill Amendmentto ensur e that EPAwould not inappropriately subject CCRs to hazardous waste regulation. The amendment was intended to avoid the excessive costs associated with Subtitle C regulation of CCRs and to promote their beneficial use. The Bevill Amendment addressed these concerns by suspending EPA's authority to regulate CCRs under Subtitle C of RCRA unless and until the Agency completed a study and reported to Congress on whether such regulation was warranted. With completion of the study and submission of the correspondi ng Report to Congress, the Bevill Amendment required EPA to make a final regulatory determination regarding whether CCRs should be regulated under Subtitle C. The Bevill Amendment required the Agency to base this final regulatory determination "on informat ion developed or accumulated pursuant to [the RCRA 8002] study, public hearings, and comment. . . ." RCRA 8002(n), 42 U.S.C . 6982(n). In short, EPA could only reach the decision to regulate CCRs under Subtitle Cafter following a statutorily

- prescribed se ries of steps that involved congressional oversight marked by EPA's submission of reports to Congress that would inform the relevant congressional committees of jurisdiction of the Agency's preliminary recommendations. Implementation of the Bevill Amendme nt EPA submitted its first Report to Congress on March 8, 1988, concluding that fly ash, bottom ash, boiler slag, and flue gasemission control waste generally do not exhibit hazardous characteristics under RCRA. Accordingly, EPAstated that it did not inte nd to regulate those four large

- volume coal combustion waste streams. The initial report went on to encourage the
utilization of coal combustion wastes to the extent that such utilization could be done in an environmentally safe manner. Six months later, E PA reiterated in its first Regulatory Determination the conclusion that hazardous waste regulation was not warranted for those four large

- volume coal combustion waste streams. 58 Fed. Reg. at 42477. The second Report to Congress, submitted in March 1999, a gain concluded that Subtitle C is inappropriate to address any problems associated with disposal of several other fossil fuel combustion wastes, including CCRs managed with certain low

- volume wastes. The report also stated that "the continued use of
site a nd region specific approaches by the states is more appropriate for addressing the limited human health and environmental risks that may be associated with disposal of these wastes." In May 2000, EPA completed the Bevill Amendment's statutorily

- prescribed assessment and reporting process when it issued its final Regulatory Determination for all remaining fossil fuel combustion wastes, including CCRs managed with certain low

- volume wastes. See 65 Fed. Reg. at 32214. Echoing its first Regulatory Determination , EPA concluded that CCRs and other fossil163

fuel combustion wastes did not warrant regulation under RCRA's Subtitle C hazardous waste program. Instead, EPA determined that regulation as a non

- hazardous solid waste under Subtitle D of RCRAwould be appropriat e when CCRs are disposed of in landfills or surface impoundments. Id.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09728

- 2 

### Organization 1 

### : Inte rmountain 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: 2.1.4 

### Comment Excerpt Text: 2. The EPA does not have sufficient reason or basis to reverse its August 1993 and May 2000 Bevill Regulatory Determinations.

We believe the EPA has insufficient reason to reverse prior determinations concerning CCR management and disposal. The EPA spent significant effort in prior undertakings to review the CCR management issue and properly rejected the RCRA Subtitle C option. The arguments presented in the current proposal still do not meet the standard for regulating CCR as hazardous or special wastes.

The EPA states that it questions whether a natural migration to Subtitle D

- like disposal practices has occurred as expected in the 2000 determination. If the EPA finds this is the case, the obvious next step would be to implement a CCR

- specific Subtitle D program much like the current proposed option, and not make the over

- reaching jump to Subtitle C management practices. IPSC believes that given the tremendous volume of CCR from power generation, one would expect to see more actual cases of CCR specific impacts to human health and the environment than actually found (based on EPA's assumption of CCR potential for impact). Since such is not the case, Subtitle C is an extreme, costly, inefficient, and legally questionable approach to bring CCR disposal pra ctices to a higher standard.

The EPA states that one indicator for the needed application of a Subtitle C program is due to damage cases it has "found" since the 2000 determination. Although any impact from CCR is troublesome, IPSC believes that the case s to which the EPA is relying for this determination are not in fact proven damage cases as required according to the standards under RCRA. We believe the EPA has improperly utilized criteria to bring cases under the umbrella of proven damage
when in fact they are not. Given a century of CCR disposal, the low number of actual proven cases does not warrant a rise to extreme over regulation under Subtitle C.

Additionally, we believe the EPA has not followed the requirements set out by Congress to164

reverse a Bevill Amendment determination. The 2000 determination was final, and the language in the law does not explore reopening a determination. Further, when the EPA does make a determination, it must make a report to Congress prior to any regulatory action. It appears that the EPA may be on legally thin ground.

IPSC is concerned that given the previous history of EPA determinations, coupled with the EPA's current efforts to stretch reasoning for Subtitle C regulation of CCR, litigation against
such action woul d be very likely, further delaying effective and quality management of CCR's where it is needed. On it's face, the proposal for a legally indefensible Subtitle C appears to be politically motivated, mostly driven by the current administration's extremely s trong animus against coal. The unfortunate tragedy at Kingston only fueled this animosity. If such politics were proven out, it would make the EPA's regulation of CCR under Subtitle C appear arbitrary and capricious.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09728

- 24 

### 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: 2.1.4 4.5.1 

### Comment Excerpt Text:

IPSC recommends that EPA :

• Leave the 1993 and 2000 determinations in place;

• Let the Bevill Amendment stand;

• Adopt the D Prime option as follows:

~ Allow existing impoundments to operate as described in the proposed rule, especially where States can have a protective program in place, and site

- specific conditions warrant it;

~ Where States have comparable Subtitle D programs: • Allow existing State landfill permitting regulations to have precedence, • Allow existing State groundwater protection standards to have pr ecedence, • Allow existing State groundwater monitoring standards to have precedence, Allow existing State self reporting requirements to have precedence over company web based documentation;

~ Allow States to adopt best practices under Subtitle D for site specific criteria;165

~ Overlay and institute Subtitle D in areas lacking at the State level.

~ Let similar State financial assurance programs operate in place of CERCLA.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of 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 discuss ion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

With regard to financial assurance programs, as stated in the proposed rule, the Agency lacks the authority to establish a financial assurance program unde r subtitle D or RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09750

- 6 

### Organization 1 

### : American Coal Council (ACC) 

### Commenter 1 : Janet Gellici Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.2 2.1.4 

### Comment Excerpt Text: A hazardous designation is not supported by three decades of EPA study and formal determinations based on strong scientific research. Previous regulatory determinations in 1993
and 2000 clea rly document that CCPs should continue to be exempt from regulation as a hazardous waste under RCRA. In its 1993 Report to Congress, EPA stated it “encourages the utilization of coal combustion wastes as one method for reducing the amount of these wastes

r equiring disposal and supported voluntary efforts by industry to investigate new possibilities for utilizing coal combustion wastes.”

On May 22, 2000, EPA issued a Final Regulatory Determination stating that fossil fuel combustion wastes “do not warrant regulation under RCRA Subtitle C,” thereby retaining the original Bevill exemption under RCRA. EPA further determined that there will be no regulation for CCRs when beneficially used and that EPA does “not wish to place any unnecessary barriers
on benefici al use.”

The ACC supports these prior EPA determinations.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09884

- 4 

### Organization 1 

### : Luminant166



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



### Comment Excerpt Text: On two separate occasions, most recently in 2000, EPA made final regulatory determinations
that concluded that Subtitle C of RCRA is not the appropriate regulatory regime for regulating CCR and that regulation as non

- hazardous waste by the states is the appropriate option for ensuring the safe management of these materials while preserving reuse. Congress directed EPA
to conside r actions of other state and federal agencies to avoid duplication of effort. EPA concluded that states could ensure that the wastes are properly managed under a non

- hazardous

program

Response: The Agency acknowledges and appreciates the comment. The co mmenter is referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under
subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09884

- 6 

### Organization 1 

### : Luminant 

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



### Comment Excerpt Text: Luminant strongly opposes the regulation of CCR as hazardous materials and reco mmends that
EPA continue to allow st ates to run their own programs consistent with the Agency's final Regulatory Determination in 2000. EPA states today on its website that "In conducting these two regulatory determinations, EPA did not identify any environmental harm associated with the
ben eficial use of coal combustion products and concluded in both determinations that these materials did not warrant regulation as a hazardous waste. The beneficial use of coal combustion products can include both encapsulated and unencapsulated applications. EPA recognizes that unencapsulated uses of coal combustion product require proper hydrogeologic evaluation to ensure adequate groundwater protection. The 2000 regulatory determination recommended a separate review addressing the use of coal combustion was tes as fill for surface or underground mines, which is currently underway." (http://www.epa.gov/osw/conserve/rrrlimr/ccps/resources.htrn)167

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

- 09885

- 17 

### Organization 1 

### : Progress Energy, Inc. 

### Commenter 1 : Caroline Choi Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: The rulemaking record supports regulation of CCRs under Subtitle D

It is important to emphasize that the development of Subtitle D non

- hazardous waste regulations for CCRs is fully consistent with the rulemaking record. In fact, it is the only lawful option available to the Agency. The development of Subtitle D regulations wou ld be the appropriate outgrowth of EPA’s two Reports to Congress and two Regulatory Determinations under the Bevill amendment declaring that CCRs do not warrant hazardous waste regulation under RCRA Subtitle C, but rather should remain primarily the provin ce of state regulatory programs under RCRA Subtitle D. Throughout its 20

- year study and issuance of the required Reports to Congress and final CCR Regulatory Determinations, EPA has consistently found that the Subtitle D approach, with active state involv ement, was the appropriate regulatory course for CCRs. In its first CCR Regulatory Determination in 1993, EPA concluded that, because “the potential for damage from these wastes is most often determined by site

- or region

- specific factors,” the “current St ate approach to regulation” under RCRA Subtitle D is most appropriate. EPA echoed this finding in its second Report to Congress in 1999, concluding once again “that [RCRA] Subtitle C is inappropriate to address any problems associated with disposal of thes e wastes and that the continued use of site and region specific approaches by the states [under RCRA Subtitle D] is more appropriate for addressing the limited human health and environmental risks that may be associated with disposal of these wastes.”

EPA reaffirmed the appropriateness of the Subtitle D option in its 2000 Regulatory Determination, concluding that “the subtitle D regulations are the most appropriate mechanism for ensuring that [CCRs] disposed in landfills and surface impoundments are manage d safely.” In addition to the fact that CCRs rarely exhibit a hazardous waste characteristic, EPA explained that the decisive factors underlying its final determination that CCRs do not warrant regulation under RCRA’s Subtitle C hazardous waste regulations were:

• improving trends in present CCR disposal and utilization practices;

• the current and potential utilization of CCRs ( i.e. beneficial use); and

• Congress’ admonition in the Bevill Amendment against duplication of efforts by other federal168

and st ate agencies.

In concluding that Subtitle D was the appropriate regulatory path forward, EPA also pointed to the record evidence as set forth in the 1999 Report to Congress that “the utility industry has made significant improvements in its waste manageme nt practices over recent years” and to similar record evidence that “state [CCR regulatory] programs have, in fact, substantially improved over the last 15 years or so.” EPA found that “the ability for most states to impose specific regulatory controls for coal combustion wastes has increased almost three

- fold over the past 15 years.” EPA concluded 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.”

This positive trend has continued, with EPA and DOE finding in their joint 2007 report of state CCR controls that “[t]he data and analyses documented in this report provide new information that appears to show improved management of CCWs in both landfills and surface impoundments.” Since the initiation of this rulemaking effort, the record support for the Subtitle D option has become even more compelling. Over the last year, the overwhelming majority of the states, the National Governors Associat ion, municipal and local governments, ASTSWMO, the Environmental Council of the States, over two dozen state environmental protection agencies and state departments of transpiration, federal agencies including the Department of Energy, a
bi

- partisan group of 165 members of Congress (including the majority of the House Energy and Commerce Committee), 45 U.S. Senators and many other third parties have expressed their support for regulation of CCRs as a non

- hazardous waste under RCRA Subtitle D. Given the
brea dth of federal agency, state, local and congressional support for the Subtitle D option, rejection of the Subtitle D option in favor of the Subtitle C approach would fly in the face of the Bevill amendment’s directive that any final regulatory program for CCRs take into account the views of other federal agencies and the states to ensure a unified decision that “avoid[s] a duplication of effort.” As noted above, Representative Bevill repeatedly cautioned EPA that it was not to make a final regulatory determ ination for CCRs “in a vacuum,” but rather was to consult and coordinate with other key agencies that have evaluated CCRs, including, the Departments of Energy, Interior and Agriculture, as well as other government agencies, to ensure a coordinated regulat ory approach for CCRs consistent with the nation’s “commitment to develop a coherent and consistent policy toward the use of our coal and other energy resources.” These federal, state, municipal and local agencies have spoken and are virtually unanimous in their support of the Subtitle D approach.

In short, given the overwhelming views by the very agencies that Congress directed EPA to consult with in determining how to regulate CCRs under RCRA, combined with EPA’s own Reports to Congress and two final Reg ulatory Determinations rejecting the concept of regulating CCRs under RCRA’s hazardous waste program, the Subtitle D option provides the only lawful regulatory approach for these materials under RCRA

Response: The Agency acknowledges and appreciates the comment. 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.169



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09885

- 2 

### Organization 1 

### : Progr ess Energy, Inc. 

### Commenter 1 : Caroline Choi Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: EPA published its first final Regulatory Determination for CCRs on August 9, 1993. This final Regulatory Determination set forth EPA’s conclusion that RCRA Subtitle C regulation of the four large

- volume CCRs

– fly ash, bottom ash, boiler slag, and flue gas desulfurization waste

–

was n ot warranted. Specifically, the Agency concluded 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 control waste] because of the limited risks pos ed by them and the existence of generally adequate State and Federal regulatory programs. The Agency also believes that the potential for damage from these wastes is most often determined by site

- or region

specific factors and that the current State appro ach to regulation is thus appropriate. Therefore, the Agency will continue to exempt these wastes from regulation as hazardous wastes under RCRA Subtitle C .... EPA will consider these wastes during the Agency’s ongoing assessment
of industrial nonhazardous wastes under RCRA Subtitle D.

EPA determined that the four large

- volume CCRs did not warrant Subtitle C hazardous waste controls, concluding that the inflexible Subtitle C hazardous waste framework was wholly inappropriate for CCRs. The agency 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 found that the rigid nature of the Subtitle C regulatory system woul d result in excess costs and unnecessary regulation as applied to CCR management units:

A Subtitle C system would require coal combustion units to obtain a [RCRA] Subtitle C permit (which would unnecessarily duplicate existing State requirements) and woul d establish a series of waste unit design and operating requirements for these wastes, which would generally be in excess of requirements to protect human health and the environment. For example, if such wastes were placed in the Subtitle C universe, all a sh disposal units would be required to meet specific liner and monitoring requirements. Since [CCR] sites vary widely in terms of topographical, geological, climatological, and hydrological characteristics (e.g., depth to groundwater, annual rainfall, dist ance to drinking water sources, soil type) and the wastes potential to leach into the groundwater and travel to exposure points is linked to such factors, it is more appropriate for individual States to have the flexibility necessary to tailor specific con trols to the site or region specific risks posed by these wastes.

Following issuance of the 1993 Regulatory Determination, EPA began work on its second report to Congress on the remaining fossil fuel combustion wastes, including CCRs managed with
certain low

- volume wastes. EPA issued its second Report to Congress in March 1999, reiterating170

“that [RCRA] Subtitle C is inappropriate to address any problems associated with disposal of these wastes and that the continued use of site and region specific approach es by the states is more appropriate for addressing the limited human health and environmental risks that may be associated with disposal of these wastes.” EPA also reiterated its belief that regulating CCRs under RCRA’s hazardous waste program would unnec essarily duplicate existing state requirements and would establish a series of waste unit design and operating requirements for these wastes that would most often be in excess of requirements to protect human health and the
environment.

EPA completed the statutorily

- required Bevill amendment process in May 2000 when it issued its final Regulatory Determination for all remaining fossil fuel combustion wastes, including CCRs managed with certain low

- volume wastes. Based on record evidence, hearings and publi c comment on the 1999 Report to Congress, EPA once again concluded that CCRs and other fossil fuel combustion wastes did not warrant regulation under RCRA’s Subtitle C hazardous waste program. EPA concluded instead that the development of national non

- haza rdous solid waste regulations under RCRA Subtitle D is appropriate when CCRs are disposed of in landfills or surface impoundments. In addition to the fact that CCRs rarely exhibit a hazardous waste characteristic, EPA explained that its final determination was based on the improving trends in present CCR disposal and utilization practices, the current and potential utilization of CCRs ( i.e.

, beneficial use) and Congress’ admonition in the Bevill amendment against duplication of efforts by other federal and state agencies. EPA pointed to the record evidence that the utility industry has made significant improvements in its waste management practices over recent years and to similar record evidence showing that “[CCR regulatory] programs have, in fact, substan tially improved over the last 15 years or so.”

In fact, EPA found that the ability of most states to impose specific regulatory controls for coal
combustion wastes has increased almost three

- fold over the past 15 years. EPA concluded that with the excepti on of relatively few states, the regulatory infrastructure is generally in place at the state level to ensure adequate management of these wastes. Thus, EPA concluded that “[w]e believe that subtitle D regulations are the most appropriate mechanism for ens uring that these wastes disposed in landfills and surface impoundments are managed safely.” Given existing state CCR regulatory capabilities and the evidence that basic controls are increasingly being put in by the state and facilities, EPA was mindful of Congress’s directive in section 8002(n) that the agency, in reaching a final determination, consider “[the] action of state and other federal agencies with a view to avoiding duplication of effort.” Consistent with this statutory dictate,
EPA concluded tha t Subtitle D controls will provide sufficient clarity and incentive for states to close the remaining gaps in coverage, and for facilities to ensure that their wastes are managed properly. Also critical to EPA’s final determination that CCRs do not warrant regulation under Subtitle C was the Bevill amendment’s direction in RCRA section 8002(n) that any final decision take into account the current and potential utilization of such materials. In particular, EPA saw a potential downside to pursuing a Subtitle C approach, citing the concerns expressed by commenters that subjecting any coal combustion wastes to a Subtitle C regime would place a significant stigma on these wastes, the most important effect being that it would adversely impact beneficial reuse. EPA acknowledged the possibility that the Subtitle C approach could have unintended consequences and that the agency was particularly concerned about any adverse
effect on the beneficial reuse market for these wastes

. EPA concluded that, given its conclusion171

that the Subtitle D approach should be fully effective in protecting human health and the environment, and given the large and salutary role that beneficial reuse plays for this waste, concern over stigma was a factor supporting the agency’s decision that Subtitle C regulation is unwarranted in light of the decision to pursue a Subtitle D approach.

After EPA issued its final 2000 Regulatory Determination, the agency continued to evaluate options for implementing Subtitle D non

- hazardous waste regulations f or CCRs. As part of this process, in 2005 and 2006, EPA and the U.S. Department of Energy (DOE) jointly conducted a study of current and recent (1) management practices for CCR disposal by industry, (2) state regulatory requirements for CCR management and (3) implementation of state requirements by state authorities. This study examined landfills and surface impoundments that were permitted, built, or laterally expanded between January 1, 1994 and December 31, 2004 to determine what changes, if any, in CCR disposal management practices and state regulatory controls had occurred since the 1994 close of the administrative record for the Bevill Regulatory Determination and EPA’s 1999 Report to Congress.

In a report titled “Coal Combustion Waste Management at L andfills and Surface Impoundments,
1994

- 2004” (DOE/EPA Report), DOE and EPA found that, “[b]etween 1994 and 2004, the amount and quality of environmental controls used at CCW management units appear to have increased.” The DOE/EPA Report cited improvements in the management of CCRs in new or expanded landfills and surface impoundments, including the use of liners and the monitoring of groundwater. EPA and DOE also examined whether state CCR regulatory controls had similarly improved and found that “[i]n eig ht areas of regulatory control reviewed for this report, more CCWs destined for landfills in the States reviewed had tightened regulatory controls than had relaxed controls between the times data were collected for the 1988 [Report to Congress] and for
thi s report.” Consistent with this continuing improvement in the administration of state CCR controls, EPA and DOE also found that the grants of variances from regulatory controls by state regulators had sound scientific support. Based on the above, the DOE/E PA Report concluded that “[t]he data and analyses documented in this report provide new information that appears to show improved management of CCWs in both landfills and surface impoundments.” The findings of the DOE/EPA Report are significant because the y provide updated information supporting the conclusions in the final 2000 Regulatory Determination that Subtitle C regulation of CCRs is not warranted due, in part, to the significant and continuing improvements in CCR waste management practices and corre sponding improvements in state CCR regulatory programs. Since completion of the DOE/EPA Report in 2007, several states have proposed and/or implemented further enhancements of their CCR controls

Response: The Agency acknowledges and appreciates the commen t. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09887

- 5 

### Organization 1 

### : Commenter 1 : Thomas H. Adams Commenter Type: Private Citizen
Classification: Substantive172

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



### Comment Excerpt Text: In the determination of 2000, the EPA stated that Subtitle D regulation of coal ash disposal was needed. That regulation was never implemented. I urge the EPA to do what it said was appropriate 10 years ago and measure the results. Going from no regulation to the most extreme regulatory option available, Subtitle C, is neither rational nor warranted

Response: The Agency ackno wledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10017

- 17 

### Organization 1 

### : Salt River Project (SRP) 

### Commenter 1 : Daniel J. Casiraro Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: Moreover, the EPA may not so cavalierly re verse the Bevill Regulatory Determinations it made previously in August 1993 and May 2000. As mentioned in the Subtitle D comments above, EPA has provided two Reports to Congress ("Reports") and issued two Regulatory Determinations ("Determinations") that were based on extensive research and analysis. Both Reports and Determinations clearly affirmed the regulation of CCRs as non

- hazardous waste and supported regulation of CCRs under RCRA Subtitle D. In the Reports and Determinations, EPA
recommended that st ates implement CCR disposal rules under RCRA Subtitle D and supported
the continued beneficial use of CCRs.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10017

- 8 

### Organization 1 

### : Salt River Project (SRP) 

### Commenter 1 : Daniel J. Casiraro
Comm enter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.5 4.2.4 2.1.4 

### Comment Excerpt Text:173

In its proposal, EPA appears to ignore the long rulemaking record relating to CCRs. Over the last twenty years, EPA has provided two Reports to Congress and issued two Regulatory Determinations that unequivocally found that CCRs do not warrant regulation a s a hazardous waste. Further, the Reports reiterate the fact that states are the most appropriate regulatory agencies for regulation of CCRs and noted that EPA would retain its existing regulatory authority under RCRA's imminent and substantial endangermen t provisions under RCRA Section 7003. If EPA is now concerned with its ability to enforce a Subtitle D program, EPA should look to the federal enforceable regulations for municipal solid waste landfills ("MSWLFs") under 40 CFR Part 258, as authorized by RC RA Sections 4010(c) and 4005(c) for guidance. The MSWLF regulations provide states with program implementation and regulatory authority over MSWLFs while allowing EPA to step in when states do not fulfill their obligations.

Response: The Agency acknowle dges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 4 

### 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. EPA’s March 1999 Report To Congress On CCRs

Following issuance of the 1993 Regulatory Determination, EPA began work on its second report to Congress on the remaining fossil fuel combustion wastes, including CCRs managed with
certain low

- volume wastes. EPA issued its second Report to Congress in Mar ch 1999, reiterating that “that [RCRA] Subtitle C is inappropriate to address any problems associated with disposal of these wastes and that the continued use of site and region specific approaches by the states is more appropriate for addressing the limit ed human health and environmental risks that may be associated with disposal of these wastes.” 1999 Report to Congress Vol. 1 at 3

- 5. EPA also reiterated its belief that regulating CCRs under RCRA‘s hazardous waste program would unnecessarily duplicate exi sting state requirements, and would establish a series of waste unit design and operating requirements for these wastes that would most often exceed the requirements necessary to protect human health and the environment. Id.

D. EPA’s 2000 Final Regulatory Determination For CCRs

EPA completed the statutorily

- required Bevill Amendment process in May 2000 when it issued its final Regulatory Determination for all remaining fossil fuel combustion wastes, including174

CCRs managed with certain low

- volume wastes. 6 5 Fed. Reg. 32214 (May 22, 2000). Based on the record evidence, hearings, and public comment on the 1999 Report to Congress, EPA once again concluded that CCRs and other fossil fuel combustion wastes did not warrant regulation under RCRA‘s Subtitle C hazar dous waste program. EPA concluded instead that the development of national non

- hazardous solid waste regulations under RCRA Subtitle D is appropriate when CCRs are disposed of in landfills or surface impoundments. Id.

In addition to the fact that CCRs ra rely exhibit a hazardous waste characteristic (id. at 32222), EPA explained that its final determination was based on the following factors: improving trends in present CCR disposal and utilization practices per the Bevill study factor in section 8002(n)(2 ); the current and potential utilization of CCRs (i.e., beneficial use) per the Bevill study factor in section 8002(n)(8); and Congress‘s admonition in the Bevill Amendment against duplication of efforts by other federal and state agencies. Id. at 32215. E PA pointed to the record evidence, as set forth in the 1999 Report to Congress, that the utility industry had made significant improvements in its waste management practices and to similar record evidence showing that “[CCR regulatory] programs have, in fa ct, substantially improved over the last 15 years or so. Id. at 32222, 32228

- 29.

In fact, EPA found that the ability for most states to impose specific regulatory controls for coal
combustion wastes has increased almost three

- fold over the past 15 years. Id. at 32230. EPA concluded 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. Id. at 32217 (as discussed below, a DOE/EPA Report shows tha t state CCR regulatory programs have continued to improve since EPA‘s 2000 final Regulatory Determination). Thus, EPA concluded that “[w]e believe that subtitle D regulations are the most appropriate mechanism for ensuring that these wastes disposed in lan dfills and surface impoundments are managed safely.” Id. At
32221.

Given state law, and the evidence that CCR controls were improving, EPA was mindful of Congress‘s directive in section 8002(n) that the Agency, in reaching a final determination,
consider [the] action of state and other federal agencies with a view to avoiding duplication of effort. Id. at 32217. Consistent with this statutory dictate, EPA concluded that Subtitle D controls will provide sufficient clarity and incentive for states to close t he remaining gaps in coverage, and for facilities to ensure that their wastes are managed properly. Id. at 32217.

Also critical to EPA‘s final determination that CCRs do not warrant regulation under Subtitle C
was the Bevill Amendment‘s direction in RCRA section 8002(n) that any final decision take into account the current and potential utilization of such materials. In particular, EPA saw a potential downside to pursuing a Subtitle C approach, citing the concerns of commenters that subjecting any coal com bustion wastes to a Subtitle C regime would place a significant stigma on these wastes, notably that it would adversely impact beneficial reuse. Id. at 32217. EPA acknowledged the possibility that the [Subtitle C] approach could have unintended consequence s, and that it was particularly concerned about any adverse effect on the beneficial re

- use market for these wastes. Id. Thus, while normally concerns about stigma are not a deciding factor in EPA‘s decisions under RCRA, EPA concluded that, given its concl usion that “the subtitle D approach here should be fully effective in protecting human health and the environment, and given the175

large and salutary role that beneficial reuse plays for this waste, concern over stigma is a factor supporting our decision tod ay that subtitle C regulation is unwarranted in light of our decision to pursue a subtitle D approach.” Id. [Footnote 8: It is also is worth noting that EPA considered, and ultimately rejected, a so

- called Subtitle C “contingent management” option for CCRs . This option was similar to that proposed for cement kiln dust, and would have involved establishing
federal Subtitle D non

- hazardous waste rules for CCR disposal facilities. CCRs managed in accordance with the applicable Subtitle D standards would remain exempt from Subtitle C hazardous waste controls. Id. at 32232. However, those facilities that committed “egregious or repeated violations of” the applicable Subtitle D CCR management standards would have been “moved into the subtitle C program” and the CC Rs at such facilities would have been subject to tailored Subtitle C hazardous waste controls. Id. Even though the contingent management Subtitle C option evaluated and rejected by EPA in 2000 was less sweeping in scope than the current Subtitle C option, EPA‘s concern with the adverse stigmatizing effects of this more limited option on the beneficial use of CCRs were significant enough to influence EPA‘s determination that the Subtitle C contingent management option was not warranted for CCRs.]

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

- 10483

- 6 

### 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: F. Notice Of Data Availability

As part of the process for following

- up on its 2000 Regulatory Determination to develop Subtitle
D non

- hazardous waste regulations for CCRs, EPA issued a Notice of Data Availability (“NO DA”) in August 2007 announcing the availability of new information on the management of CCRs in landfills and surface impoundments. EPA sought comment on this new information to better assess “how, if at all, this additional information should affect the A gency‘s decisions as
it continues to follow

- up on its Regulatory Determination for [CCRs] disposed of in landfills and surface impoundments.” 72 Fed. Reg. 49714 (Aug. 29, 2007). The new information included (1) the joint DOE/EPA study referenced above prov iding an update on the status of state CCR disposal regulations, and (2) a draft risk assessment conducted by EPA on the management of CCRs in landfills and EPA‘s assessment of CCR disposal units that it had identified as “damage cases.” Id. EPA also sough t comment on a rulemaking petition filed by citizens‘ groups, as well as approaches suggested by the electric utility industry, including USWAG, regarding the management of CCRs. EPA stated that it would consider the new information and the associated1 76

comm ents, as well as the results of the peer review of the draft risk assessment, “as it continues
to follow

- up on its Regulatory Determination for [CCRs] disposed of in landfills and surface impoundments.” Id.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 8 

### 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:
Other Sections: 2.1.6 

### Comment Excerpt Text: A. EPA Completed The Bevill Regulatory Process For CCRs In 2000 And The Statute Does Not
Authorize EPA To Reverse That Decision

EPA h as completed the Bevill process pursuant to a judicially

- imposed deadline and determined, in accordance with the congressionally

- mandated decision

- making process, that CCRs do not warrant regulation under Subtitle C. The statutory decision making process i s complete and RCRA does not authorize EPA to decide to take a second bite at the apple and reverse its final CCR Regulatory Determinations in a manner of its own choosing.

Congress established a detailed process by which EPA could determine whether and how to regulate CCRs under RCRA Subtitle C. EPA has completed that statutory process, determining that CCRs do not warrant regulation under RCRA Subtitle C, and concluding instead that CCRs warrant regulation under RCRA‘s Subtitle D nonhazardous waste prog ram. The plain language of the statute does not contemplate, let alone authorize, EPA undertaking another round of the
Bevill decision

- making for CCRs. If it did, the statutory process and its associated deadlines for reaching a final regulatory determinat ion would have no meaning and EPA could continually change its mind in an abbreviated fashion, as illustrated by the proposed Subtitle C option.

EPA readily concedes that the Bevill Amendment does not include a process for Agency reversal
of the CCR final Regulatory Determinations. In response to an inquiry from Representative Markey following the Kingston ash release regarding whether and how EPA could reverse its final CCR Regulatory Determinations for CCRs, EPA‘s then

- Acting Associate Administrator

rea dily acknowledged that “RCRA does not specifically spell out the process by which we [would] revise the Regulatory Determination.” See Letter from Joyce K. Frank, EPA Acting Associate Administrator, to Rep. Markey, Chair, House Committee on Energy and Comm erce, at 3 (Jan. 30, 2009) (“Frank Letter”) (attached as Appendix 4). As the D.C. Circuit has held, Congress‘ failure to grant an agency a given power is not an ambiguity as to whether that power has, in fact, been granted. On the contrary, and as this Cou rt persistently has recognized, a statutory silence on the granting of a power is a denial of that power to the agency. American Bus. Ass’n v. Slater, 231 F.3d 1, 8 (D.C. Cir. 2000) (Sentelle, J., concurring) (emphasis added).177

Here, even EPA acknowledges t hat the statute does not speak to whether and how EPA can revise its final CCR Regulatory Determinations. The Agency nonetheless assumes that it possesses such power. It does not.

It is a fundamental principle of administrative law that an agency‘s author ity to act must come directly from Congress. Absent such authority, an agency may not act. See U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 566 (D.C. Cir. 2004) ([S]tatutory silence simply leaves th[e] lack of authority untouched. In other words, the failure o f Congress to use Thou Shalt Not language doesn‘t create a statutory ambiguity of the sort that triggers Chevron deference.); Ethyl Corp. v. EPA, 51 F.3d 1053, 1060 (D.C. Cir. 1995) (“We refuse ... to presume a delegation of power merely because Congress h as not expressly withheld such power.”); Ry. Labor Executives’ Ass’n v. Nat’l Mediation Bd., 29 F.3d 655, 671 (D.C. Cir. 1994) (en banc) (“Were courts to presume a delegation of power absent an express withholding of such power, agencies would enjoy virtua lly limitless hegemony, a result plainly out of keeping with Chevron and quite likely with the Constitution as well.”) (emphasis in original). [Footnote 10: See also Adams Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990) (“A 'gap' is not created in a statuto ry scheme merely because a statute does not restate the truism that States may not preempt federal law.”); Aid Ass’n for Lutherans v. USPS, 321 F.3d 1166, 1174

- 75 (D.C. Cir. 2003) (“[T]he Postal Service‘s position seems to be that the disputed regulations are permissible because the statute does not expressly foreclose the construction advanced by the agency. We reject this position as entirely untenable under well established case law.”).]

The Bevill Amendment is completely silent on EPA‘s authority to re do or reverse a final regulatory determination that the Agency has already properly reached pursuant to the Amendment‘s statutorily prescribed procedures and deadlines. [Footnote 11: Though, as noted above, EPA missed the statutory deadlines set forth in t he statute for reaching a final regulatory determination for CCRs; a citizen suit over this missed statutory deadline resulted in EPA being subject to court

- ordered deadlines for issuing both the 1993 and 2000 CCR final Regulatory Determinations. ] If Cong ress had wanted to give EPA this authority, it would have done so explicitly.[Footnote 12: Indeed, when Congress wishes to give an agency the authority to revisit prior statutory compelled actions, it knows how to do so. See e.g., Clean Air Act § 112(c)(1) , 42 U.S.C. § 7412(c)(1) (1990) (“CAA”) (directing EPA to re

- evaluate no less often then every eight years and revise, as appropriate, based on public comment or new information, the list of categories of major sources and area sources listed by EPA under CAA Section 112(c)(3)); see also CAA § 109(d), 42 U.S.C. § 7409(d) (directing EPA to review at five year intervals the criteria for pollutants published under CAA Section 7408 and the national ambient air quality standards promulgated under Section 7409 an d make such revisions and promulgate new standards as may be appropriate). As explained above, Congress has not provided EPA with similar authority to reevaluate and revise its final CCR Regulatory Determinations.] As the
above federal decisions make clear , such silence means that EPA does not have the authority to undertake, through a process and timing of its own choosing, a second regulatory determination.

The plain language of the statute provides for only a one

- time decision, directing EPA to
determin e, not later than six months after the statutorily

- required report to Congress on CCRs, whether Subtitle C regulation for CCRs is warranted. See RCRA § 3001(b)(3)(C). That determination, which was to be based on information developed or accumulated pursuan t to such178

study, public hearings, and comment, was to be published in the Federal Register and accompanied by an explanation and justification of the reasons for it. Id. EPA completed this statutory process for CCRs over ten years ago, concluding for a mul titude of reasons that CCRs do not warrant regulation under RCRA Subtitle C. The statute simply does not empower EPA to
revisit its final decision and render a new determination.

If EPA wishes once more to undertake the statutorily

- prescribed process for reaching a final regulatory determination for CCRs, it must obtain this authority from Congress. If Congress were to grant EPA such authority, it would be reasonable to expect that Congress would establish new statutory deadlines and perhaps new and differ ent statutory study factors for EPA to evaluate in undertaking an additional regulatory determination for CCRs. Absent such authority from Congress, the Agency is not empowered to alter its final 1993 and 2000 Regulatory Determinations for CCRs. Therefore, EPA cannot pursue the Subtitle C option. [Footnote 13: While “[a]n agency can normally change its position and reverse a decision ... Congress, however, undoubtedly can limit an agency‘s discretion to reverse itself[.]” New Jersey v. EPA, 517 F.3d 574, 582

- 83 (D.C. Cir. 2008). Here, Congress has limited EPA‘s ability to reverse its final Bevill Regulatory Determination by specifying prescribed procedures and timeframes for completing the determination and not authorizing the Agency to revisit that final dete rmination and issuing a new determination. ]

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10497

- 2 

### Organization 1 

### : Seminole Electric Cooperative, Inc. (Seminole) 

### Commenter 1 : Carl Eldred
Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: III. EPA’s Proposed Regulation of CCRs under Subtitle C is Ultra Vires and Exceeds EPA’s Statutory Authority For the first time, EPA has published a proposal to regulate CCRs destined for disposal as hazardous wastes. In so doing, EPA is attempting to reverse its 1993 final regulatory determination which, following an extensive study, report to Congress, and public comment, determined that subtitle C regulation of CCRs was not warranted. 58 Fed. Reg. 42466 (Aug. 9, 1993). This determination was confirmed in 1999 in the second part of EPA’s regulatory determination which applied to coal combust ion wastes other than the four large volume coal combustion wastes. 65 Fed. Reg. 32214 (May 22, 2000). EPA was granted limited statutory authority to make a single determination as to whether CCRs should be regulated as a hazardous
waste. EPA exercised thi s authority in 1993 in relation to the large volume CCRs and does not have the statutory authority to reverse that determination absent specific congressional authorization. Moreover, even assuming EPA did possess such authority, it did not follow the179

mand ated statutory process for rendering a regulatory determination. Consequently, the subtitle C option is ultra vires and unlawful. a. EPA’s Regulatory Determination is Complete and Can Not be Reopened Absent Specific Congressional Authorization In 1980, Con gress amended the Resource Conservation and Recovery Act (“RCRA”) and established an exemption from hazardous waste regulations for CCRs. The exemption, known as the Bevill Amendment, is set forth in a section entitled “Identification and listing of hazard ous waste.” 42 U.S.C. § 6921. Subsection (a) requires that EPA “promulgate criteria for identifying the characteristics of hazardous waste, and for listing specific hazardous wastes, which would be subject to the provisions of this subchapter.” Id. at § 69 21(a). Within that statutory section, CCRs were specifically identified as exempt from hazardous waste regulations pending EPA’s completion of a study. Id. at § 6921(b)(3)(A). Specifically, EPA was directed to conduct “a detailed and comprehensive study” a nalyzing eight enumerated factors, and to submit a “report on the adverse effects on human health and the environment, if any, of the disposal and utilization of CCRs.” 42 U.S.C. § 6982(n). The report was to be submitted to Congress, and thereafter subject to public comment and hearings. 42 U.S.C. § 6921(b)(3)(C). Based on its findings, EPA was to publish its determination as to whether CCRs should be regulated as hazardous waste. Id. In 1993, EPA completed this process for fly ash, bottom ash, boiler slag, and flue gas emission control waste and published its final regulatory determination in the Federal Register. 58 Fed. Reg. 42466. Specifically, the agency concluded that these large volume CCRs did not warrant regulation as hazardous waste. Id.
This final regulatory determination was affirmed by EPA in May 2000 when it published its regulatory determination for all other fossil fuel combustion wastes generated at electric utilities that were not addressed in 1993. 65 Fed. Reg. 32214. While EPA found that s ubtitle C regulation of CCRs was unwarranted, it concluded that subtitle D regulation of CCRs disposed in landfills or surface impoundments, or used in minefill operations, was warranted. Id. EPA based its determination, in part, on increasing state regula tion of CCR management, finding that “the regulatory infrastructure is generally in place at the state level to ensure adequate management of these wastes.” Id. at 32216

- 17. Furthermore, EPA stated that subtitle D controls would provide sufficient clarity and incentive for states to close the remaining gaps in state coverage. Id. at
32217. Despite the findings of the 2000 regulatory determination, EPA did not promulgate subtitle D regulations. Instead, more than eight (8) years later, it performed a u

- turn and drafted a regulatory proposal that would subject CCRs to subtitle C regulation. Draft CCR Proposal, EPA

HQ

- RCRA

– 2009

- 0640

- 0013 (Oct. 16, 2009). This regulatory proposal was substantially revised following review by the Office of Management and Budget a nd resulted in the current Proposed Rules. Comparison of Final Draft Rule, EPA

- HQ

- RCRA

– 2009

- 0640

- 0012 (May 3, 2010). Even as revised, the adoption of the subtitle C proposal would unlawfully reverse the 1993 regulatory determination. EPA cannot simply reve rse its final regulatory determination without Congressional authorization. The Bevill Amendment directed EPA to follow a specific and comprehensive process culminating in a final determination as to whether subtitle C regulation
of CCRs was warranted. 42 U.S.C § 6921(b)(3)(C). EPA followed that process and in 1993 issued its final regulatory determination for the four large Volume CCRs. 58 Fed. Reg. 42466. Congress did not authorize EPA to revisit its determination or conduct an ongoing evaluation.
The sta tutorily mandated process, therefore, is complete, and there remains nothing further for EPA to do absent specific Congressional direction or authorization. Absent such clear direction,180

EPA is without authority to reverse its final determination.
The statu tory text of the Bevill Amendment shows Congress’s unmistakable, unambiguous expressed intent that EPA conduct only one determination. Congress repeatedly called on EPA to produce one, single study. 42 U.S.C. § 6982(n) (“a ... study,” “a report,” “such study ,” “this study,” “shall publish a study on such report”). Furthermore, the verbs in the text indicate EPA and Congress must act on a single study. Id. (providing for study of several factors at one time; for publication of the study on a single, specified date; and for presentation of a single report to committees). [Footnote 1: EPA ultimately performed two studies and two regulatory determinations published in 1993 and 2000. This bifurcated process was imposed by the consent
decree entered in Gearhart v. B rowner, No. 91

- 2435 (D.D.C), as a result of EPA’s delayed completion of the study and report mandated by Congress. Specifically, the consent decree directed EPA to complete its regulatory determination for the four large volume wastes by August 2, 1993, an d to complete its regulatory determination for the “remaining wastes”

- i.e., all other fossil fuel combustion wastes generated at electric utilities that were not addressed in 1993

- by April 25, 2000. 65 Fed. Reg. at 32218. Even so, this simply meant EPA ’s single study was divided into two parts, thereby keeping with Congressional intent.] Furthermore, this understanding of Congressional intent is supported by the statutory text of RCRA. Section 8002 of the act, 42 U.S.C. § 6982, is entitled “Special stud ies; plans for research, development, and demonstrations.” The Bevill Amendment was placed in this section because it was only one of many studies Congress mandated that EPA conduct. Each of these studies, then, provides some context to the Bevill Amendmen t. Section 8002 delineates over 19 types of studies. Of these, 18 use similar language to the Bevill Amendment and clearly indicate that only one study was to be conducted. Conversely, subsection (s), which deals with extending the useful life of landfills , just as clearly indicates that multiple studies are necessary. Specifically, this subsection requires “comprehensive studies,” and “such studies shall address” a number of factors Congress listed. Id. at (s). Congress also indicated its ongoing interest in the subject by requiring that “[t]he Administrator shall periodically report on the results of such studies.” Id. Thus, had Congress intended for the Bevill Amendment determination to be ongoing, it would have used language like it did in subsection (s) . Congress would have stated that it wanted multiple reports and would have explicitly required EPA to continue to submit periodic reports. Congress did not provide such authority, and EPA cannot act without it. EPA may claim that it left the door open for an ongoing review. It did not, and it cannot. In the 2000 regulatory determination, EPA stated that it “may conclude over the next several months that this decision [not to regulate CCRs under subtitle C] should be revised.” 65 Fed. Reg. 32218. Such langu age is meaningless, absent clear Congressional authorization, and it does not enable EPA to render its final regulatory determination a work in progress. This argument also ignores the fact that the final regulatory determination for the four large volume CCRs (fly ash, bottom ash, boiler slag and FGD waste) was published in 1993. While the 2000 regulatory determination affirmed the 1993 regulatory determination, its focus was explicitly limited to the “remaining wastes.” Id. Therefore, even if such languag e was sufficient to keep the regulatory determination open, it would be limited to the subject matter of that specific regulatory determination and not the four large volume 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 for181

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



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10498

- 6 

### Organization 1 

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

### Commenter 1 : Carl Eldred Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: a. The Decisive Factors in EPA’s Two Previous Determinations Remain Valid Today

In its 1993 Regulatory Determination, EPA recognized that hazardous constituents in CCRs have the potential to leach into groundwater under certain conditions, but that exceedences above toxicity characteristic regulatory levels were infrequent and that the average concentrations of constituents were below characteristic toxic levels. 58 Fed. Reg. 42475

- 76. EPA also found that the potential for human exposure solely from the large

- volume CCRs was limited under the management practices employed at the time and further noted that management practices were moving toward more protective management practices, including lined systems and groundwater monitoring. Id. These finding s lead EPA to conclude that management practices and regulatory controls were adequate. Id. at 42476. Not only did EPA conclude that existing state programs were adequate, EPA determined that it was “unlikely that subtitle C regulations would effectively a ddress the problems associated with the four

- large volume CCRs without imposing unnecessary controls.” Id. at 42477. Specifically, EPA found that many of the unit design and operating requirements would exceed requirements to protect human health and the e nvironment, and that existing state requirements would be unnecessarily duplicated. Id. Based on these findings, EPA concluded that subtitle C regulations were not appropriate to address the problems associated with CCRs and that they should be addressed b y states. Id.

Again, in 2000, EPA reached the same ultimate determination for similar reasons. EPA found that CCRs may pose risks to human health and the environment if they are not properly managed. 65 Fed. Reg. 32216. At the same time, however, EPA reco gnized that generally the regulatory infrastructure was in place at the state level to ensure that CCRs are adequately managed. Id. at 32217. Indeed, EPA recognized states were increasingly requiring liners and groundwater monitoring for CCR landfills and surface impoundments and that there was increased regulatory oversight of these facilities by states. Id. at 32216. In fact, the trends in disposal and utilization practices were identified by EPA as the first of three “decisive factors” in
its decision no t to regulate CCRs under subtitle C. Id. at 32215. EPA’s own statistics indicate that this factor remains valid today.

Based on the information presented in the 2000 joint EPA and United States Department of Energy (“DOE”) study, state regulation of CCR l andfills and surface impoundments continues to improve. EPA & DOE, Coal Combustion Waste Management at Landfills and Surface Impoundments, 1994

- 2004, (Aug. 2006), at http://www.fossil.energy.gov/programs/powersystems/pollutioncontrols/coal_waste_report.pdf

.182

(“EPA/DOE Report”).[Footnote 4: Although the EPA/DOE Report addressed only eleven states, those states represent approximately half of the CCRs generated in the nation. 75 Fed. Reg. 35151.] As noted by EPA, with one exception, all new landfills and surfa ce impoundments constructed between 1994 and 2004 were constructed with liners. 75 Fed. Reg. 35151. By way of comparison, from 1985 to 1995, seventy

- five (75) percent of landfills and sixty (60) percent of surface impoundments were constructed with liners. EPA/DOE Report, at S

- 5. A similar increase was identified in relation to the number of landfills and surface impoundments constructed with groundwater monitoring systems. Ninety

- seven (97) percent of landfills and nearly eighty (80) percent of surface imp oundments constructed or expanded between 1994 and 2004 have groundwater monitoring systems. Id. Again, by way of comparison, eighty

- eight (88) percent and sixty

- five (65) percent of landfills and surface impoundments respectively, constructed between
1985 and 1995, had groundwater monitoring systems. Id. at S

- 6. The EPA/DOE Report also found that the majority of states surveyed had tightened regulatory controls for liners, groundwater monitoring, and leachate collection since the time data was collected fo r the 1988 EPA Report to Congress. Id. at S

- 8.

Based on these findings, the EPA/DOE Report concluded that the “data and analyses documents in this report provide new information that appears to show improved management of [CCRs] in
both landfills and sur face impoundments.” Id. at S

- 11; see also, 75 Fed. Reg. at 35151 (stating that “[t]he results of the joint DOE and EPA study...indicate that of the states evaluated in this report, state regulations have generally improved since 2000. In addition it would ap pear that the industry itself is changing and improving its management practices.”) A recent survey conducted by the Association of State and Territorial Solid Waste Management Officials (“ASTSWMO”) also indicates that state regulation of CCRs continues to improve. Thirty

- six (36) out of forty

two (42) states that generate CCRs have permit programs for CCR landfills. Letter from ASTSWMO to Matt Hale (Apr. 1, 2009), EPA

- HQ

- RCRA

- 2009

- 0640

- 0024 (“ASTSWMO Survey”). Only three (3) states indicated that they do n ot have a permit program for CCR landfills, the remaining three (3) states did not respond. Id. Of the thirty

- six (36) states that have CCR surface impoundments, twenty

- five (25) stated that they have a permit program in place for these facilities. Id. Aga in, only three (3) states responded that they do not have a regulatory program for surface impoundments and eight (8) states did not respond. Id. In the Proposed Rules, EPA provided additional information from ASTSWMO, which indicates that fifteen states
h ad revised their regulatory requirements for CCRs since 2000 and that eight (8) states now require groundwater monitoring that had not previously. 75 Fed. Reg. 35152.

It also is important to note that while some states may not have specific regulations fo r the disposal of CCRs, they do impose liner and groundwater monitoring 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 a pproved subtitle D program are typically applied to CCR landfills and surface impoundments as part of the PPSA certification process and conditions of certification issued there under. See 75 Fed. Reg. 35152. Therefore,
the actual number of states that are imposing liner and groundwater monitoring requirements may be higher than reflected in the survey. Regardless, based on the foregoing information alone, it appears that states with CCR landfills and surface impoundments are continuing to make improvements in the regulation of CCRs, and that industry is making improvements to CCR management practices.183

The second “decisive factor” cited by EPA in its 2000 determination not to regulate CCRs under subtitle C was the current and potential utilization of CCRs. 65 Fed. Reg. 32215. EPA acknowledged industry concerns regarding the adverse impact that subtitle C regulation of CCRs may have on beneficial use rates and stated that it did not want to “place any unnecessary
barriers” on beneficial uses of these material s. 65 Fed. Reg. 32217. At the time, approximately twenty

- three (23) percent (roughly twentyeight (28) million tons) of CCRs generated each year were beneficially used. Id. at 32217. In 2008, approximately thirty

- seven (37) percent (roughly 50 million tons) of CCRs generated each year were beneficially used. ACAA, Coal Combustion Product Production & Use Survey Report, (2008) available at http://acaa.affiniscape.com/associations/8003/files/2008_ACAA_CCP_Survey_Report_FINAL_ 100509.pdf.; see also 75 Fed. Reg. 35151. This represents a fourteen (14) percent increase in beneficial use over roughly an eight year period.

Although EPA has proposed to exempt certain CCRs that are destined for beneficial use from subtitle C regulation, the mere fact that CCRs destined for disposal may be subject to subtitle C regulation has already impacted the beneficial use market. One FCG member has already received requests from clients seeking to renegotiate existing contracts and to reduce “minimum take” provisions (i.e., the min imum amount of CCRs they are obligated to accept) and to include new terms that make their contractual obligations contingent upon the outcome of this rulemaking. At numerous public hearings on the Proposed Rules, CCR marketers and members of the recycling industry have submitted testimony detailing the stigma associated with subtitle C regulation of CCRs destined for disposal and the impact it is and will have on their businesses. At the public hearing in Charlotte, North Carolina, several company represen tatives and individuals testified that they have already experienced cancelled contracts or renegotiated contracts based purely on EPA’s proposed rules and the mere possibility of subtitle C regulation. Others testified that they have been informed by majo r clients that they will no longer purchase products produced from CCRs if the disposal of CCRs is regulated under subtitle C. Clearly, the stigma associated with the potential regulation of CCRs destined for disposal under subtitle C is adversely impactin g the beneficial use of CCRs. If adopted, the subtitle C option will likely devastate the beneficial use market for CCRs. Concerns regarding potential “barriers” to CCR beneficial use, therefore, are equally, if not more valid today than they were in 2000.

The third “decisive” factor was the Congressional admonition against duplication of efforts by other Federal and state agencies. 65 Fed. Reg. 32215. This admonition was recognized in 1993 by EPA when it specifically found that subtitle C regulations, par ticularly the need to obtain a subtitle C permit, would unnecessarily duplicate existing state regulations. See 58 Fed. Reg. 42477. If that was true then, it is certainly true today. As discussed more fully above, the ASTSWMO survey found that the majority of states that generate CCR’s have permit programs in place for CCR landfills and surface impoundments. See 75 Fed. Reg. 35152. As EPA recognized, such permit programs are important to provide necessary regulatory oversight. Id. Therefore, the prevalence of such programs is a strong indicator that states are effectively regulating and overseeing the operation of CCR landfills and surface impoundments.

This trend was noted yet again in the 2000 Regulatory Determination, where EPA found that
states had made substantial progress regulating the disposal of CCRs and the regulatory184

infrastructure was in place at the state level to ensure that CCRs are adequately managed. 65 Fed. Reg. 32217. The EPA/DOE Report and the ASTSWMO survey results both indicate that sta te regulation of CCR disposal has generally improved since then. 75 Fed. Reg. 35152. Therefore, in light of the increased state regulation of CCR landfills and surface impoundments, and the existence of state permitting programs, the admonition against dup lication of state efforts is even more compelling now than it was in 2000.

The three decisive factors identified in 2000 as the basis for EPA’s affirmation that subtitle C regulation was unwarranted remain true today. Further, EPA has failed to provide an y evidence indicating that state regulation of CCR disposal is not continuing to improve, that the beneficial utilization of CCRs will not be impacted by the subtitle C option, or that subtitle C regulation will not unnecessarily duplicate state regulation s. Absent justification as to why these factors are no longer valid, adoption of the subtitle C option would be arbitrary and capricious. See Motor Vehicles Mfrs. Ass’n. v State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983) (finding that agencies “mus t examine the relevant data and articulate a satisfactory explanation for its action, including a "rational connection between the facts found and the choice made”)(internal quotations omitted).

Response: The commenter is referred to Unit IV of today’s p reamble 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

- 10517

- 5 

### Org anization 1 

### : Palmetto Agribusiness Council (PABC) 

### Commenter 1 : Bob Battle Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: We respectfully request that EPA stand by their previous RCRA designation in the May 2000
Bevill Amendment and re

- issue a "non

- hazardous designation" for CCRs.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10542

- 1 

### Organization 1 

### : U.S. House of Representatives 

### Commenter 1 : Randy Stewart Commenter Type: Federal Elected Official
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4185



### Comment Excerpt Text: 1 . Such regulation is wholly unwarranted from an environmental perspective and is inconsistent with past EPA rulings on two occasions, in 1993 and again in 2000, the EPA has determined that coal ash should not be regulated as a hazardous waste under the RCRA's hazardous waste program. Nothing has changed regarding the nature of coal ash

- it is the same product now as in 1993 and in 2000. What has changed is that a TVA impoundment dam failed in December 2008, raising the awareness of how coal ash is stored. That was a structural issue with the dam itself

- a totally separate issue from the composition of coal ash. There is no question that dam integrity must be assured for all impoundments, but this regulation does not address that issue

Response: The Agency acknowledges and appreciates the comment. 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. Contrary to the commenter’s statement that the rule does not cover th e structural integrity of a surface impoundment, the commenter is referred to Unit VI or the final rule preamble and the associated regulatory text on structural integrity requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0199

- 16 

### Organization 1 

### : Portland Cement Association (PCA) 

### Commenter 1 : Robert Hirsch Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.4.3 

### Comment Excerpt Text:

PCA believes that all of our comments

– initial, supplemental, and NODA

– have provided ample evidence and examples of incidents of stigma which have already occurred and can clearly be expected to continue, if CCRs are regulated under subtitle C. Our examples demonstrate and portend a serious decline and consequences to the reuse and recycling of CCRs in the future if the subtitle C option is adopted. Through our combined comments, and the examples of stigma that we and others have provided, we have highlighted the shortcomings and th e arbitrariness of EPA’s reliance on experiences it has had with other wastes as its predictor that stigma will not occur if CCRs are regulated under subtitle C. These NODA comments, together with our initial and supplemental comments, have also demonstrat ed the serious flaws in the arguments and analysis regarding stigma that have been presented by Fortuna and Joint Advocates, respectively, in their submissions to the docket. PCA contends, therefore, that, if anything, a stronger case for stigma has been m ade and documented for this rulemaking than the record on which
Administrator Browner relied when she made her 2000 determination and found there was
sufficient reason to conclude:

"even though beneficially reused waste would not be hazardous under the co ntemplated subtitle C approach, the link to subtitle C would nonetheless tend to discourage purchase and re

- use of the waste. We do not wish to place any unnecessary barriers on the beneficial uses of these wastes, because they conserve natural resources, reduce disposal costs and reduce the total amount of waste destined for disposal."186

65 Fed. Reg. at 32217.

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

- 2011

- 0392

- 0199

- 17 

### Organization 1 

### : Portland Cement Association (PCA) 

### Commenter 1 : Robert Hirsch Commenter Type: T rade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.4.3 10.4.7 

### Comment Excerpt Text: The appropriateness and, indeed, the continuing applicability of the caution that Administrator Browner determined was warranted in 2000, to this rulemaking, has now been given further credence by EPA’s regulatory review Plan. Under EPA’s Plan, regulatory reviews would be
concluded on a 5

- year cycle. Therefore, if the subtitle C option were adopted and were to result in the stigma and related consequences to reuse and recycling which PCA and others have good reason to contend will occur, it is highly unlikely that EPA would be able to take the quick action that would be required to remed iate such damage to the reuse and recycling of CCRs that will have already occurred, let alone be able to take timely action to prevent that damage from continuing. As we explained earlier in these NODA comments, EPA’s ability to offset and over

come the n egative information and smears that would have caused a stigma to occur in the first place would be an extremely difficult and time

- consuming process. This assumes, of course, that it could even be accomplished; and as we discussed previously, however, PCA contends that a stigma once created will not be overcome.

On the other hand, if regulating CCRs under subtitle D is subsequently demonstrated to be inadequate, EPA could still turn to subtitle C; a remedial safeguard that Administrator Browner
concluded was both reasonable and appropriate. As Administrator Browner rightly observed: “If this conclusion [regulating under subtitle D] turns out not to be warranted, we would be inclined

to re

- examine our current decision.” The reasonableness of that same appro ach here still exists.

Before concluding, one final aspect of the relevancy of EO 13563 and EPA’s Final Plan (Plan) to this rulemaking bears mention on EPA’s conduct of this rulemaking. Section 1.1.2 of the Plan is entitled “Improved Transparency” and pro claims EPA’s commitment “to enhance transparency by striving to expand public disclosure of pollution, compliance, and other regulatory information to more efficiently provide information to the public upon which choices can be made.” Plan at 7. To achieve that end, the Plan further states:

"Both when reviewing existing regulations and when developing new regulations, EPA intends to seek ways to expand public disclosure of pollution, compliance, and other regulatory187

information to improve the actual result s of regulatory requirements and more efficiently provide the public with information necessary to participate in the regulatory process."

Id.

While in theory the foregoing statement is laudable, it was clearly not honored nor adhered to by EPA with resp ect to this NODA docket. On October 13, 2011, PCA delivered a letter to EPA requesting fourteen documents identified in the NODA docket that, because of copyright, had not been placed into the docket so that they could be readily accessed by the public. Al though this practice has been common to EPA rulemakings in the past, it had also been EPA’s common practice to make such documents available to the public via email upon request to the docket room. Indeed, PCA has on several occasions had to request copyri ghted documents from EPA, which the EPA did provide via email or mail. For example, on June 29, 2010, we asked for, and did receive by mail from EPA the five documents listed in the letter included with these comments as Appendix B. EPA will note that the five documents we requested specifically related to the underlying CCR rulemaking docket, EPA

- HQ

- RCRA

- 2009

- 0640.

It appears, however, that, in spite of the Agency’s goal of increased transparency, EPA recently changed its prior policy to make such documen ts available via email and mail, which benefitted the public by avoiding the need for any member of the public to have to physically come to EPA headquarters to obtain a copy of such documents or have to the obtain relevant rulemaking
documents from anothe r outside source. Moreover, the new policy appears to have been implemented unilaterally by EPA, without providing public announcement and explanation, and/or without EPA apparently feeling any need to solicit the public’s prior comment about its abrupt ch ange in policy and the impact which this change would have on the functional ability of the public to obtain such documents prior to submitting rulemaking comments; i.e., a meaningful opportunity to participate in the rulemaking; in particular when EPA has give the public only 30 days to submit comments in response to the NODA.

PCA’s request for the documents via email or mail was responded to via email on October 18, 2011, i.e., five days after our document request had been submitted to EPA. A copy of the EPA contractor who responded to PCA’s request is included with these comments as Appendix C. It stated in relevant part:

"Requests are handled on a first

- come first

- serve basis. While our goal is to complete your request within 10 business days, this may not be possible due to high volume."

Most notable is the fact that this response did not provide any notice to PCA of the fact that EPA had changed its previous policy and would no longer provide the documents we had requested by
email and or mail.

Foll owing receipt of that response, PCA immediately contacted EPA again to renew our request for a comment extension; this time we requested just an additional 30 days, assuming that would be sufficient time for the docket room to provide the documents per the email we had received. (Appendix D). It was then, in response to our second request, that we received an informal email response advising that EPA had changed its policy and would no longer provide copies of188

rulemaking documents via email or mail; this, t oo, is included in email correspondence contained in Appendix D.

Subsequently, on October 25, 2011, twelve days after our original document request was submitted to EPA, PCA received a letter from EPA responding to our second request for an
extension of t ime based on our still

- pending document request, which formally turned down both our request to receive the NODA documents we had requested by email or mail and also the 30

- day comment period extension we had also requested. EPA’s response is included with these comments as Appendix E. [Footnote 56: It is noteworthy that only EPA’s October 17, 2011 response denying PCA’s request for 60

- day extension of time has been placed into the docket. It was designated EPA

- HQ

- RCRA

- 2011

- 0392

- 0135. EPA’s October 25, 2011 response to our second request for an extension of the comment period based on our pending document request
has not been inserted into the docket. It is for that reason that it is included here in these comments as Appendix D.]

As it relates to the appli cability of EO 13563 to this rulemaking, the following excerpts from EPA’s October 25, 2011 letter, responding to our second request for an extension of the comment period and also to the our request for documents, are especially salient:

"While we apprec iate your concern, EPA believes that the public has ready access to these materials through a variety of sources. The copyrighted materials referenced in the NODA are from widely available, common technical journals, EPA has provided the public with the
in formation they would need to be able to access them electronically, through local libraries, or through purchase

.

The majority of the articles you requested are from technical journals, such as those of the American Concrete Institute, ASTM, Energy Engine ering, and Elsevier. A quick internet search of all fourteen of the documents you requested yielded links for seven of them. A list
of the seven links is enclosed.

In addition, EPA expects that all of the materials are available through local libraries. M ost libraries have access to the Online Computer Library Center, Inc. (http://www.oclc.org/us/en/default.htm) a nonprofit computer service and research organization whose systems help libraries of all types locate, acquire, catalogue, and lend library mate rials. Almost 26,000 libraries world

- wide participate. This makes it easy for libraries to locate reports and periodical articles quickly. Journal articles, in particular, are usually obtained quickly, because the lending library just photocopies the artic le and sends it often via fax to the requesting library.

Finally, as you were informed in response to your request to obtain the documents, people in the Washington DC [sic] area can obtain access to copyrighted documents by visiting the RCRA
docket at Ro om 3334, 1301 Constitution Ave., NW., Washington, DC 20460.

We regret that the restriction established by copyright laws and the technical limitations of Regulations.gov effectively mean that the public cannot access these documents through a single websi te. However, given the variety of methods for accessing these documents available,189

and the absence of any information demonstrating that these methods have been ineffective, we do not believe that an extension of the comment period is warranted on this bas is."

(Emphasis supplied.)

Although PCA eventually obtained the documents in question, by having to send a staff person over to the RCRA docket room, so we are therefore not contesting either the inclusion of these documents in the NODA docket or EPA’s re liance upon those documents, the fundamental fact remains that EPA has not been transparent in this NODA docket. EPA’s correspondence overlooks the fact that the restrictions on use and dissemination of copyrighted materials can easily be overcome with the author’s permission. Thus, EPA has the option to make such a request on its own, or at the very least to request that commentators to public rulemakings provide such permission as a condition of a document being included in a docket.

However, requiring m embers of the public

– regardless of their particular policy interest, where they may be located, and/or who they may be

– to either go to public libraries and/or have to pay for copies of documents which a federal agency inserts into a rulemaking docket a nd is likely to rely upon, falls far short of the meeting the requirements and objectives of EO 13563 and EPA’s Plan to implement EO 13563, in particular Section 2 of the EO, which states:

"(b) To promote that open exchange, each agency, consistent with E xecutive Order 12866 and other applicable legal requirements, shall endeavor to provide the public with an opportunity to participate in the regulatory process. To the extent feasible and permitted by law, each agency shall afford the public a meaningful o pportunity to comment through the Internet on any proposed regulation, with a comment period that should generally be at least 60 days. To the extent feasible and permitted by law, each agency shall also provide, for both proposed and final rules, timely o nline access to the rulemaking docket on regulations.gov, including relevant scientific and technical findings, in an open format that can be easily searched and downloaded. For proposed rules, such access shall include, to the extent feasible and permitte d by law, an opportunity for public comment on all pertinent parts of the rulemaking docket, including relevant scientific and technical findings."

Response: The Agency acknowledges and appreciates the comment, however, the ability or inability to obtain docket documents is outside the scope of this rulemaking.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0199

- 2 

### Organization 1 

### : Portland Cement Association (PCA) 

### Commenter 1 : Robert Hirsch Commenter Type: Trade Association
Classification: Substantive
Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.2.2 10.4.3 2.2.8 2.2 4.1.1 

### Comment Excerpt Text:190

The following summarizes the specific issues we address in these comments:

- PCA’s comments in response to the NODA, including the detailed additional examples of stigma that we provide herein, focus on and are in direct response to specific documents, i.e., the Fortuna analysis (EPA

- HQ

- RCRA

- 2011

- 0392

- 0026) and the comments submitted by the Joint Advocates (EPA

- HQ

- RCRA

- 2011

- 0329

- 0119 ), that EPA has made a subject of this NODA.

- Former Administrator Browner’s sensitivity to avoid needlessly creating a stigma and instead regulate initially under subtitle D was, and still is sound policy: “If this conclusion [regulating
under subtitle D] turns out not to be warranted, we would be inclined to re

- examine our current decision.”

- Since submitting our initial comments, PCA has learned of a number of additional examples of stigma involving coal combustion residuals (CCRs) and the reuse of C CRs for beneficial purposes, which discredit and rebut the claims by the Joint Advocates and Fortuna that regulating CCRs under subtitle C will not stigmatize CCRs used for beneficial purposes.

- EPA’s Final Plan for conducting periodic retrospective revi ews of existing regulations lends strong support for regulating CCRs under subtitle D and not under subtitle C.

- The results of a recent sociological study conducted by the University of New Hampshire corroborate the validity of industry’s concerns that CCRs used for beneficial purposes can be, and are being, stigmatized by the array of negative information being published and disseminated by the advocates of the subtitle C option, and by others, and that such information is fostering and reinforcing the public’s opposition to beneficial uses of CCRs generally and, in particular, belief that products containing CCRs should be avoided whenever possible.

- A recent article published by, and for, the property and casualty sector of insurance industry,
callin g CCRs the “next asbestos,” provides good and reliable evidence that CCRs have already been stigmatized.

- Comments submitted to this docket by opponents of the subtitle D options provide an excellent demonstration of the efforts taking place to smear and ultimately stigmatize CCRs and the reuse and recycling of CCRs.

- The campaign against the use of CCRs for sandblasting and roofing shingles provides a good example of how negative advertising is already being used and re

- circulated in order to stigmatiz e products whose ingredients include CCRs.

- EPA should not treat a stigma report prepared for the leading opponents to the subtitle D option as “expert opinion” and/or give the report’s analysis and conclusions deference and/or preference over the stigma concerns and comments supporting stigma submitted by industry and others.

- EPA is required by law to consider the stigma effect that regulating CCRs under RCRA subtitle C would, or might, have on the current and future beneficial use of CCRs.191

- Opponen ts of the subtitle D options have not demonstrated that the stigma concerns that have been presented to EPA are fallacious.

- Industry, state governments, and others have demonstrated in comments and with examples that the stigmatization of CCRs reuse has already begun to occur.

- Individual members of the U.S. Green Building Council’s (USGBC) “knowledgeable panel of professionals” have posted advice and recommendations on the USGBC website which are effectively lending unwarranted credence to the negativ e information and stigma being promoted
about CCR reuses.

- Opponents of the subtitle D options have presented erroneous legal arguments regarding the Bevill factors and their irrelevancy to EPA’s final decision in this rulemaking.

- Opponents of the sub title D options have effectively conceded that the potential for CCRs and their reuses to be stigmatized does exist.

- Claims that the courts disfavor stigma arguments have no merits.

- Opponents of the subtitle D options are engaging in a smear campaign that includes the widespread dissemination of false and misleading information, innuendo, and the raising of specious issues, all carefully crafted to inflame the public and instill public fear of CCRs and virtually all reuses of CCRs.

- Opponents of the subtitle D options erroneously and disingenuously argue that if a particular reuse of CCRs might be “dangerous” it cannot be “beneficial.”

- Opponents of the subtitle D options have sought to demonize all unencapsulated uses of CCRs,
and do so without an y consideration of whether appropriate control measures could be put into place or if a particular use is minimal.

- Opponents of the subtitle D options have cited research results for erroneous propositions and/or out of context in order to promote publi c fear of, and opposition to, encapsulated reuses of CCRs generally.

- Opponents of the subtitle D options have cited examples of “miscellaneous” reuses of CCRs that they know, or at the very least should know, are not relevant to this rulemaking, in orde r to stimulate public doubt and fear about CCR recycling and reuse and thus foster public opposition
to the use of coal as an industrial fuel source.

- The negative comments and advocacy tactics being used by opponents of the subtitle D options
will be a direct cause of the decrease in the reuse and recycling of CCRs that will occur in the event CCRs are regulated under subpart C.

- The public education program that opponents of the subtitle D options advocate will be incapable of overcoming the stigma an d fear of CCR reuses that those opponents have already192

generated and are continuing to promote.

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 i s also referred to Units IV and VI for a complete discussion of the beneficial use aspects of the rule. The commenter is also referred to the Volume 12 of the Response to Comment document for additional detail on beneficial use aspects of this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0199

- 8 

### Organization 1 

### : Portland Cement Association (PCA) 

### Commenter 1 : Robert Hirsch Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sectio ns: 10.4.3 2.2.8 2.2 

### Comment Excerpt Text: B. Comments submitted to the docket present erroneous legal arguments regarding the Bevill factors and their relevancy to EPA’s final decision in this rulemaking. In comments submitted by Joint Advocates (EarthJu stice, Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, and Physicians for Social Responsibility) the following claims have been made: “While the Bevill factors arguably require EPA at least to consider stigma, the Bevill factors do not govern EPA’s final decision on its proposed rule,” EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 122 (previously EPA

HQ

- RCRA

- 2009

- 0640

- 10495.1 at 122), and that, “[e]ven if the stigma conc erns raised by industry were legitimate . . . they would not provide a valid basis for declining to regulate coal ash under RCRA Subtitle C.” Id. The Joint Advocates further assert, as Fortuna did in his analysis: “The D.C. Circuit’s decision in Hazardous Waste Treatment Council v. U.S.E.P.A. is directly on point.” EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 123 (previously EPA

- HQ

- RCRA

- 2009

- 0640

- 10495.1 at 123). PCA disagrees.

The above

- quoted claims present the Joint Advocates’ legal assertions relating to the scope an d manner of EPA’s rulemaking authority under the Bevill Amendment. As such, if these assertions are correct, they would control whether, when, and how, the issue of stigma and, in particular, the presentations of factual examples of stigma, can be consider ed by EPA in the course of this rulemaking. Under the Joint Advocates’ theory, industry’s factual presentations of examples of stigma would have no relevancy to EPA’s decision to adopt the subtitle C option, because “the Bevill factors do not govern EPA’s final decision on its proposed rule,” EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 122 (previously EPA

- HQ

- RCRA

- 2009

- 0640

- 10495.1 at 122). While PCA disagrees with the Joint Advocates, if it is assumed they are correct for sake of argument, it must
also be assumed that th e Joint Advocates would have presented this legal argument at the beginning of their comments addressing stigma, because the existence of such clear

- cut legal restrictions on EPA’s authority would supersede EPA’s consideration of stigma and other

matters o f fact and would have avoided any need for EPA, or the Joint Advocates, to address stigma at all. Clearly that would be the logical and most expedient thing to do. Thus, if HWTC193

applies and is as “directly on point” as they claim, the Joint Advocates would only have needed a few paragraphs, or perhaps only a footnote, to dispose of the stigma issue and EPA’s consideration of stigma.

The Joint Advocates did not present their legal argument upfront, however. In fact, their legal arguments do not even begin u ntil page 122 of their comments, i.e., 11 pages into their comments’ discussion of stigma.

Moreover, the Joint Advocates discussion of stigma in their comments was not limited to just a few paragraphs, or a footnote. Rather, the Joint Advocates’ initial, as well as their primary, focus on stigma deals with matters involving facts. Beginning on page 111 of their comments, and ending on page 153, they present a lengthy dissertation on why industry’s claims are, among things, “speculative,” EPA

- HQ

- RCRA

- 2011

- 0 392

- 0119 at 114 (previously EPA

- HQ

- RCRA

2009

- 0640

- 10495.1 at 114), and amount to nothing more than industry’s presentation of “alarmist stigma arguments” that should not be given credence. EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 127 (previously EPA

- HQ

- RCRA

- 2009

- 0640

- 10495.1 at 127).

PCA believes it is significant that the Joint Advocates felt it was necessary to devote more than 41 pages of their comments to the issue of stigma, when, according to their legal theory, virtually
all of that discussion should have been superfluous. It is also significant that the Joint Advocates felt the need to commission and pay Fortuna to prepare his stigma report, which they appended to their comments as Appendix N. Clearly, the Joint Advocates’ actions speak much louder than
their words. Clearly too, the Joint Advocates demonstrate they have no confidence in the merits and correctness of their legal argument. As we explain below, they have good reason.

Earlier in these NODA comments we demonstrated that the DC Circuit’s decision in HWTC is neither on point nor relevant to this rulemaking. PCA does not feel it is necessary to repeat that discussion here and we therefore refer EPA back to pages 9

- 11 of these NODA comments, supra.

However, PCA will address here another legal argument that was also raised in the Joint Advocates’ comments, which is based on their flawed interpretation of the Bevill Amendment and its interplay with 42 U.S.C. § 6921. According to the Joint Advocates:

While EPA must determine whether to promulgate regulati ons based on consideration of the Bevill factors, once it has made the decision to regulate, the ordinary listing factors apply. This makes sense. Once EPA has found that regulation of coal ash is warranted, it would defeat RCRA’s overarching purpose to re gulate coal ash less protectively than the statute and implementing regulations require. Because none of the relevant provisions of the Bevill Amendment requires EPA to list coal combustion waste pursuant to the Bevill study factors,
EPA must make a final listing decision based on the regulatory listing criteria, which do not include stigma or even encouragement of reuse as a factor.

EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 124 (previously EPA

- HQ

- RCRA

- 2009

- 0640

- 10495.1 at 124).

Based on the Joint Advocates’ theory, five out of the eight individual Bevill factors would be194

rendered nugatory and, as a result, EPA’s consideration of those factors would be superfluous.

- Factor 1: “the source and volumes of such materials generated each year;”

- Factor 5: “alternatives t o current disposal;”

- Factor 6: “the cost of such alternatives;”

- Factor 7: “the impact of those alternatives on the use of coal and other natural resources;”

- Factor 8: “the current and potential utilization of such materials.”

According to the Joint Advocates’ statutory analysis, therefore, while acknowledging the obvious fact that the Bevill Amendment directs EPA to analyze such factors, they essentially argue that none of these five factors is relevant to EPA’s regulatory decision, because “the Bevi ll factors do not govern EPA’s final decision on its proposed rule.” EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 122 (previously EPA

- HQ

- RCRA

- 2009

- 0640

- 10495.1 at 122).

In other words, the Joint Advocates argue that the Bevill Amendment imposed what amounts to
an “all

- o r

- nothing” scheme for regulating Bevill wastes. Under this theory, if CCRs need to be regulated, they must be regulated under subtitle C, or they cannot be regulated at all. Therefore, according to their theory, if, after considering the Bevill factors, EP A determines that CCRs should not be regulated under subtitle C, EPA would be prohibited from regulating CCRs under RCRA subtitle D, because “the Bevill factors do not govern EPA’s final decision on its proposed
rule.” EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 122 (pr eviously EPA

- HQ

- RCRA

- 2009

- 0640

- 10495.1 at 122).

To put this into perspective, under the Joint Advocates’ theory, if EPA determines that the unregulated disposal of CCRs poses a potential danger to human health and the environment (Bevill factor 3), but al so determines that CCRs should not be regulated under subtitle C, because doing so would reduce current and potential future reuse and recycling of CCRs (Bevill factors 7 and 8) and increase landfill disposal, EPA could not regulate CCRs under subtitle D, even if the risk to public health and the environment could be appropriately addressed under subtitle D, and the amount of CCRs being disposed of in landfills would be significantly decreased. The Joint Advocates’ “all

- or

- nothing” construction of the statu te is nonsensical. It would be extremely short

- sighted, and arbitrary, for EPA to adopt the Joint Advocates’ “all

- or

nothing” theory.

At a minimum, if the Joint Advocates’ statutory construction were adopted by EPA, the Agency’s analysis of at least five of the eight Bevill factors would be rendered effectively meaningless, because regardless of what information were developed under those factors, the information would have no bearing on EPA’s final regulatory decision. The Joint Advocates’ construction ig nores a long line of Supreme Court decisions. As the Supreme Court opined in Duncan v. Walker, 533 U. S. 167, 174 (2001), for example: “It is 'cardinal principle of statutory construction’ that 'a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant." See, also United States v. Menasche, 348 U. S. 528, 538

- 539 (1955) (“It is our duty to give effect, if possible, to every clause and word of a statute [citatio n omitted] rather than to emasculate an entire section."); Montclair v. Ramsdell, 107 U. S. 147, 152 (1883) ("It is the duty of the court to give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which195

imp lies that the legislature was ignorant of the meaning of the language it employed.”).

The 2000 Bevill determination that Administrator Browner issued makes it quite clear that EPA is well aware of this basic canon of statutory construction. It is also abu ndantly clear from the 2000 determination that the Agency has rejected the Joint Advocates’ “all

- or

- nothing” reading of the statute. Below we quote a number of statements from Administrator Browner’s 2000 determination that speaks directly to the statutory construction that the Joint Advocates have advanced in their comments. Her statements support PCA’s reading of the statute and make it abundantly clear that the Joint Advocates’ interpretation of the statutory is wrong:

"Today’s decision was, in the Agen cy’s view, a difficult one, given the many competing considerations discussed throughout today’s notice. After considering all of the factors specified in RCRA section 8002(n), we have decided as discussed further below, that the decisive factors
are the t rends in present disposal and utilization practices (section 8002 (n)(2)), the current and potential utilization of the wastes (Section 8002 (n)(8), and the admonition against duplication of efforts by other federal and state agencies."

65 Fed. Reg. at 32 215.

"We believe, however, for the reasons described below, the better approach at this time to ensuring adequate management of FFC wastes is to develop national regulations under subtitle D rather than subtitle C. EPA has reached this conclusion in large part based on consideration of “present disposal and utilization practices.” RCRA § 8002(n)."

65 Fed. Reg. at 32216.

EPA’s 2000 determination further makes clear that, in selecting which subtitle of RCRA CCRs should be regulated under, the factor of sti gma does indeed provide a valid basis for EPA to decline to regulate CCRs under RCRA subtitle C. The following statement from Administrator Browner’s 2000 determination demonstrates this clearly, and unequivocally:

"We also see a potential downside to pur suing a subtitle C approach. Section 8002(n)(8) directs us to consider, among other factors, “the current and potential utilization of such materials.’’ Industry commenters have indicated that they believe subjecting any coal combustion wastes to a
subtitl e C regime would place a significant stigma on these wastes, the most important effect being that it would adversely impact beneficial reuse. As we understand it, the concern is that, even though beneficially reused waste would not be hazardous under the c ontemplated subtitle C approach, the link to subtitle C would nonetheless tend to discourage purchase
and re

- use of the waste. We do not wish to place any unnecessary barriers on the beneficial uses of these wastes, because they conserve natural resources, reduce disposal costs and reduce the total amount of waste destined for disposal. [Emphasis supplied] States and industry have also expressed concern that regulation under subtitle C could cause a halt in the
use of coal combustion wastes to reclaim aband oned and active mine sites. We recognize that when done properly, minefilling can lead to substantial environmental benefits. EPA believes the contingent management scheme we discussed should diminish any stigma that might be
associated with the subtitle C link. Nonetheless, we acknowledge the possibility that the196

approach could have unintended consequences. We would be particularly concerned about any
adverse effect on the beneficial re

- use market for these wastes because more than 23 percent (approximatel y 28 million tons) of the total coal combustion waste generated each year is beneficially reused and an additional eight percent (nine million tons) is used for minefilling. EPA believes that such reuse when performed properly, is by far the environmentall y preferable destination for these wastes, including when minefilled. Normally, concerns about stigma are not a deciding factor in EPA's decisions under RCRA, given the central concern under the statute for protection of human health and the environment. H owever, given our conclusion that the subtitle D approach here should be fully effective in protecting human health and the environment, and given the large and salutary role that beneficial reuse plays for this waste, concern over stigma is a factor suppo rting our decision today that subtitle C regulation is unwarranted in light of our decision to pursue a subtitle D approach. [Emphasis supplied]

Additionally, in a 1993 regulatory determination, EPA previously addressed large volume coal
combustion wastes generated at electric utility and independent power producing facilities that manage the wastes separately from certain other low volume and uniquely associated coal combustion wastes (see 58 FR 42466; August 9, 1993). Our 1993 regulatory determination

ma intained the exemption of these large volume coal combustion wastes from being regulated as hazardous wastes when managed separately from other wastes (e.g., in monofills). We intend that the national subtitle D regulations we develop for the coal combusti on wastes subject to today’s regulatory determination will also be applicable to the wastes covered in the 1993 regulatory determination for the reasons listed below, so that all coal combustion wastes are consistently regulated for placement in landfills, surface impoundments, and minefills.

- The co

- managed coal combustion wastes that we studied extensively in making today’s regulatory determination derive their characteristics largely from these large

- volume wastes and
not from the other wastes that are co

- managed with them.

- We believe that the risks posed by the co

- managed coal combustion wastes result principally from the large

- volume wastes.

- These large

- volume coal combustion wastes, account for over 20% of coal combustion wastes.

As we proceed with regulation development, we will also take enforcement action under RCRA section 7003 when we identify cases of imminent and substantial endangerment. We will also use Superfund remedial and emergency response authorities under the Comprehensive
Envir onmental Response Compensation and Liabilities Act (CERCLA), as appropriate, to address damages that result in risk to human health and the environment.

However, as stated above, this decision was a difficult one and EPA believes that, absent our
conclusi ons regarding the current trends in management of this waste, the waste might present sufficient potential threat to human health and the environment to justify subtitle C regulation. There are several factors that might cause us to rethink our current det ermination. First, and perhaps most importantly, if current trends toward protective management do not continue, EPA may well determine that subtitle C regulation is warranted for this waste. As we have stated, we197

do not believe the current gaps in the bas ic controls are acceptable, and our determination that subtitle C regulation is not warranted is premised to a large extent on our conclusion that subtitle D regulation will be sufficient to close these gaps. If this conclusion turns out not to be

warrante d, we would be inclined to re

- examine our current decision."

65 Fed. Reg. at 32217

- 18.

In short, the following two conclusions regarding the applicability and application of the Bevill Amendment must be drawn from Administrator Browner’s 2000 determinati on. First, that the Bevill factors apply to the entirety of EPA’s regulatory decision regarding CCRs and not just to EPA’s determination whether CCRs should be regulated. Therefore, contrary to what the Joint Advocates’ comments contend, EPA’s application of the Bevill factors in this rulemaking should not be limited solely to the Agency’s decision whether to regulate to CCRs but also extends to EPA’s determination of how CCRs are listed, i.e., whether CCRs should be regulated under
RCRA subtitle C or subti tle D. [Footnote 22: The Joint Advocates ignore the statutory construction the Agency adopted under former Administrator Browner. They instead assert, albeit erroneously: “Even if the stigma concerns raised by industry were legitimate

– which they

are not

– they would not provide a valid basis for declining to regulate coal ash under RCRA Subtitle C.” EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 122 (previously EPA

- HQ

- RCRA

- 2009

- 0640

- 10495.1 at 122).] Second, Administrator Browner’s 2000 determination also made abundantly clear that the factor of stigma can indeed influence EPA’s decision whether to CCRs should be regulated under RCRA subtitle C or subtitle D. Based on Administrator Browner’s 2000 determination, if regulating CCRs under subtitle C could, in fact, cause a st igma, the existence of that possibility will suffice to provide EPA with a valid basis to decline to regulate CCRs under
subtitle C.

Accordingly, and contrary to the comments submitted by the Joint Advocates, the examples of stigma that industry provides bear directly upon EPA’s decision whether it would be better to regulate CCRs under RCRA subtitle D, i.e., to decline to regulate them under subtitle C. Although PCA provided a number of examples of stigma in its original comments, because of
the comments submitted by the Joint Advocates, and by Fortuna, we feel a need to submit additional examples of stigma that we learned of since submitting our original set of comments.

As further rebuttal to the comments of the Joint Advocates and also Fortuna, PCA pro vides a detailed discussion of additional examples of stigma in Section E of these NODA comments,
below.

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 com menter is also referred to Units IV and VI for a complete discussion of the beneficial use aspects of the rule. The commenter is also referred to the Volume 12 of the Response to Comment document for additional detail on beneficial use aspects of this rul e.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0243

- 3 

### Organization 1 

### : DC Goss LLC198



### Commenter 1 : David Goss, Consultant Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.2.2 10.4.7 

### Comment Excerpt Text: As was done in the EPA’s efforts leading up to the issuance of the “Final Determination” in May of 2000, a thorough review of beneficial use information submitted will put to rest concerns about using CCRs in construction, agr iculture and commercial applications. In May 2000, the EPA clearly stated that they reached their determination that beneficial uses do not present a significant risk to human health and the environment after their collection and analysis of
information av ailable. If the EPA chooses not to conduct this review, the stigma created by the proposed rulemakings remains, inferring that CCRs are not safe to use because the EPA does not know if they are safe (since no review of the benefits

- or risk

- was undertak en). Furthermore, in May 2000 the EPA stated that although some commenter’s disagreed with the EPA’s conclusion on beneficial use of CCRs in agriculture (for example), no data or other support was provided (by these commenter’s), nor was any information pr ovided that showed risk or damage was associated with this application. I would argue that unless the EPA has hard evidence that there are now examples of damage when CCRs are used beneficially, they have an obligation to reaffirm the Agency’s position in 2000. This should be done through a review of the data submitted on beneficial use as part of the comments received on the rulemaking.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR und er 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. The commenter is also referred to the Volume 12 of the Response to Comment document for additional detail on

ben eficial use aspects of this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0248

- 10 

### Organization 1 

### : Headwaters Resources, Inc. 

### Commenter 1 : William Gehrmann III Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.2.2 3.1.2 

### Comment Excerpt Text: In sum, although Headwaters does not believe EPA can reverse its 2000 determination to regulate CCRs under Subtitle D, to the extent EPA goes forward with this rulemaking, it is entirely proper for EPA to use the data and information relating to the beneficial use of CCRs that EPA received during the public comment period in developing the final rule. Indeed, EPA must consider such comments under the Bevill Amendment, APA, a nd Executive Orders 13563 and 12866. Further, as detailed in its previously submitted comments, and in these additional199

comments regarding the beneficial use impacts, Headwaters urges EPA not to list disposed CCR as a special hazardous waste under Subtitle C, and to clarify some important issues regarding how the beneficial use rules will be applied under Subtitle D.

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 RCR A. The commenter is also referred to Units IV and VI for a complete discussion of the beneficial use aspects of the rule. The commenter is also referred to the Volume 12 of the Response to Comment document for additional detail on beneficial use aspects of this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0248

- 3 

### Organization 1 

### : Headwaters Resources, Inc. 

### Commenter 1 : William Gehrmann III Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.2.2 2.2.8 10.2.2 

### Comment Excerpt Text: I. EPA Is Required to Consider the Beneficial Use Data and Information Under the Bevill
Amendment

As the Utility Solid Waste Activities Group ("USWAG") explained in its comments on the proposed rule, [Footnote 1: Headwaters incorporates by reference those portions of USWAG's comments regarding the Bevill Amendment requirements and process, found at pages 27

- 41. Comments of The Utility Solid Waste Activities Group, The Edison Electric Institute, T he American Public Power Association, and The National Rural Electric Cooperative Association on Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities; Propo sed Rule, Docket
No. EPA

- HQ

- RCRA

- 2009

- 0640, at 27

- 41 (Nov. 19, 2010), available at www.regulations.gov.] EPA does not have authority to undertake this rulemaking because EPA properly decided to regulate CCRs under Subtitle D, rather than Subtitle C, in its 2000 determination

-- a determination which EPA cannot now reverse. Headwaters agrees with this point. Further, as USWAG also stated and as we also agree, even if we assume that somehow EPA could now legally reverse its final 2000 regulatory determination f or CCRs, EPA could only do that if it were to follow the Bevill amendment procedures set forth in the statute for regulating disposed CCRs as hazardous waste. See 42 U.S.C. §§ 6921(b)(3)(A) and (C), and 6982(n). As part of these procedures, EPA must "condu ct a detailed and comprehensive study and submit a report on the adverse effects on human health and the environment, if any, of the disposal and utilization of fly ash waste, bottom ash waste, slag waste, flue gas emission control waste, and other byprodu ct materials generated primarily from the combustion of coal or other fossil fuels." 42 U.S.C. § 6982(n). This study must include a detailed analysis and consideration of a number of
factors:200

(1) "the source and volumes of such material generated per yea r"; (2) "present disposal and utilization practices"; (3) "potential danger, if any, to human health and the environment from the disposal and reuse of such materials"; (4) "documented cases in which danger to human health or the environment from surfac e runoff or leachate has been proved"; (5) "alternatives to current disposal methods"; (6) "the costs of such alternatives"; (7) "the impact of those alternatives on the use of coal and other natural resources"; and (8) "the current and potential utili zation of such materials."

42 U.S.C. § 6982(n). Factors (2) ("present disposal and utilization practices") and (8) ("the current and potential utilization of such materials") specifically relate to beneficial use of CCRs. Thus, under the Bevill Amendment , EPA is required to consider data and other information relating to beneficial use of CCRs in any rulemaking effort that could result in greater regulation
of CCRs.

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. T he commenter is also referred to the Volume 12 of the Response to Comment document for additional detail on beneficial use aspects of this rule.



### Comment Number: TRANS

- CHI

- 0066

- 2 

### Organization 1 

### : Utility Solid Waste Activities Group 

### Commenter 1 : Jim Roewer Com menter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: In fact, even EPA agreed that hazardous waste regulation will result in excessive and unnecessary regulation. In its final regulatory determination in 2000, EPA concluded that hazardous waste regulation was not warranted for coal ash, and the Agency found that the inflexible nature of the federal hazardous waste program would result in excess costs and unduly burdensome regulations for coal ash. Let me quote EPA on this point: A Subtitle C system would require coal combustion waste units to obtain a RCRA Su btitle C permit (which would unnecessarily duplicate existing State requirements) and would establish a series of waste unit design and operating requirements for those wastes, which would generally be in excess of requirements to protect human health and the environment...Since [coal ash] sites vary widely in terms of topographical, geological, climatological, and hydrological characteristics (e.g., depth to groundwater, annual rainfall, distance to drinking water sources, soil type) and the wastes potenti al to leach into the groundwater and travel to exposure points is linked to such factors, it is201

more appropriate for individual States to have the flexibility necessary to tailor specific controls to the site or region specific risks posed by these waters. Frankly, we couldn't have said it better and nothing has changed since issuance of that
determination to alter this conclusion

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: TRANS

- CHI

- 0125

- 2 

### Organization 1 

### : Environmental Integrity Project 

### Commenter 1 : Sam Flenner Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: In fact, there are some misinterpretations about determinations about coal ash in the past. In 1993, when the EPA made a determination for Subtitle D, they did state that the current disposal practices at the time could cause health and environmental problems in the future, and they have. In 2000, the determination, the press release from the EPA, there has been a whole drumbeat of letters talking about how the EPA det ermines D, EPA determined that. But here I'll take a quote from what they determined in the year 2000 and the quote is from their press release. Their press release states that "If the states and industry do not take steps to address these wastes adequatel y in a reasonable amount of time, and if the EPA identifies additional risk to public health, EPA will revisit this decision," and this revisiting of the decision is not any bit too soon

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: TRANS

- CLT

- 0127

- 1 

### Organization 1 

### : Duke Energy 

### Commenter 1 : Chris Hallman Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: Duke Energy strongly supports the development of Federal regulations for coal combustion
resi duals under RCRA's Subtitle D non

- hazardous waste program. We believe that regulation under Subtitle C is unwarranted and we're not the only ones who think so. EPA's own significant study and past rulemaking process also supports this approach. The202

develo pment of Subtitle D regulations would be the appropriate outgrowth of EPA's two reports to Congress and two final regulatory determinations under the Bevill Amendment declaring that CCRs do not warrant hazardous waste regulation under RCRA Subtitle C.
Thr oughout EPA's 20 years of study, it has consistently found that the Subtitle D approach, with active state involvement, was the appropriate regulatory course for CCRs. In addition, various state and federal agencies, members of academia, and many others ha ve studied CCRs for nearly three decades. These entities evaluated CCRs for toxicity levels and found them to be well below the criteria that would require a hazardous waste designation. First in its 1993 CCR Regulatory Determination and again in its seco nd report to Congress in 1999, EPA concluded that RCRA Subtitle D is more appropriate for addressing the limited human health and environmental risks that may be associated with disposal of these wastes. EPA reaffirmed the appropriateness of the Subtitle D option in its 2000 CCR regulatory determination, concluding that the Subtitle D regulations are the most appropriate mechanism for ensuring that CCRs disposed in landfills and surface impoundments are managed safely. EPA's decisive factors in reaching it s final determination that CCRs do not warrant regulation as a hazardous waste include one, CCRs rarely exhibit a hazardous waste characteristic; two, trends demonstrate CCR disposal and utilization practices are improving; and three, the current and poten tial beneficial use of CCRs are important advantages

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: TRANS

- LVL

- 0032

- 1 

### Organization 1 

### : Kentucky Department of Environmental Protection 

### Commenter 1 : Bruce Scott Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Section s: 2.1.4 

### 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. Electrical generation in Kentucky uses approximately 42 million tons per year. Approximately 10 million tons per year of CCR is g enerated in Kentucky. EPA has previously declared in its Report to Congress in 1988 and 1999 that coal combustion waste are high volume and low hazard and do not warrant regulation under Subtitle C. EPA regulatory findings published in 1993 and 2000 indic ated that these wastes do not warrant regulation under Subtitle C as well. However, EPA's proposed rule is not consistent with those previous conclusions and the state does not see a technical basis for EPA's change of course in this proposed rule

Response: The Agency acknowledges and appreciates the comment. The commenter is203

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under

subtitle D of RCRA.



### Comment Number: TRANS

- LVL

- 0045

- 2 

### Organization 1 

### : Duke Ene rgy 

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



### Comment Excerpt Text: Certain activist groups are alleging dozens of new damage cases, including some that are at Duke Energy facilities. In its final May 2000 regulatory determination concluding that CCRs do not warrant Subtitle C regulation, a close examination of the facts reveals many flaws in the recent allegations made by activist grou ps regarding additional damage cases. Many of the assertions are based on extremely flimsy evidence, with unfounded conclusions. EPA cannot rely on these assertions in any final rulemaking without conducting its own factual, independent review of the
sites and following for

-- and allowing for public notice and comment on their findings

Response: The Agency acknowledges and appreciates the comment. The commenter is also referred to discussions on damage cases and EPA analyses in Units IV and XI of the pr eamble to
this final rule.



### Comment Number: TRANS

- LVL

- 0062

- 1 

### Organization 1 

### : Duke Energy 

### Commenter 1 : David Weiss Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: We believe that regulation under Subtitle C is unwarranted both environmentally and economically, but Duke Energy strongly supports the development of reasonable federal regulations for coal

- combustion residuals under EPA's Subtitle D non

- hazardous waste program. And we are not the only ones who think so. EPA's own previous studies and past rule

- makings also support this approach. The development of Subtitle D regulations would be appropriate outgrowth of EPA's two reports to the Congress and two final regulatory determinations under the Bevill Amendment declaring that CCRs do not warrant hazardous waste regulation under RCRA Subtitle C. Throughout EPA's 20 years of study, it has consistently found that Subtitle D approach with active state involvement was the appropriate regulatory course for CCRs. Various state and federal agencies, universities, and others have studied CCRs for nearly three decades. These204

entities evaluated CCRs for toxicity levels and found t hem to be well below the criteria that would be a required hazardous waste designation. First in its 1993 regulatory determination, and then again in its second report to Congress in 1999, and then again in 2000, EPA concluded that Subtitle D is more appro priate for addressing the limited human health and environmental risk that may be associated with the disposal of these wastes. The factors that EPA used in reaching its final determination that CCRs do not warrant regulation as hazardous waste include (1 ) CCRs rarely exhibit a hazardous waste classification; (2) recent trends demonstrate CCR disposal and utilization practices are improving; and (3) the current and potential beneficial use of CCRs are important advantages

Response: The Agency acknowledges and appreciates the comment. 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.

Section 2.1.4

- 1993 Regulatory Determination (35136

- 35137) Total Number of Submissions: 4 3 Total Number of Comments: 52



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 04138

- 3 

### 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: 2.1.3 

### Comment Excerpt Text: EPA has previously declared in its Report to Congress in 1988 and 1999 that coal combustion wastes are high volume and low hazard and do not warrant regulation under Subtitl e C. EPA regulatory findings published in 1993 and 2000 indicate that these wastes “do not warrant regulation under Subtitle C.” However, EPA’s proposed rule is not consistent with those previous conclusions and the state does not see a technical basis for EPA’s change of course in this proposed rule.

Response: The Agency acknowledges and appreciates the comment. 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 and to defer the Bevill Regulatory Determination

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06196

- 13 

### Organization 1 

### : Comite Dialogo Ambiental 

### Commenter 1 : Ruth Santiago Commenter Type: Advocacy Group
Classification: Substantive205

Comment Category:
Current Ta sk: Examine Context Assigned/Due:



### Comment Excerpt Text: The Bevill Exemption is based on EPA’s belief, in 1993 that, “human populations generally are not directly exposed to the groundwater in the vicinity of coal

- fired utility waste management sites, public drinking water intakes are usually at least several kilometers from the sites” (58 FR 42468). That is not the case in Puerto Rico.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s prea mble for a discussion on our decision to regulate CCR under
subtitle D of RCRA and to defer the Bevill Regulatory Determination

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06196

- 16 

### 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: 2.1.3 

### Comment Excerpt Text: The effect of the Bevill Exemption has been to promote the secondary use of CCRs in a totally

unco ntrolled manner. Response: The Agency acknowledges and appreciates the comment. 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 and to defer the Bevill Regulatory Determin ation

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 3 

### 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: 2.1.3 

### Comment Excerpt Text: EPA has previously declared in its Report to Congress in 1988 and 1999 that coal combustion residuals are high volume and low hazard and do not warrant regulation under Subtitle C. EPA regulatory findings published in 1993 and 2000 indicate that these wastes "do not warrant regulation under Subtitle C." However, EPA's proposed rule is not consistent with those previous conclusions and the state does not see a technical basis for EPA's change of cou rse in this proposed rule.206

Response: The Agency acknowledges and appreciates the comment. 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 and to defer the Bevill Regulator y Determination

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06299

- 2 

### Organization 1 

### : MidAmerican Energy Holdings Company (MidAmerican) 

### Commenter 1 : Cathy S. Woollums Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: CCR Does Not Warrant Hazardous Waste Regulation

The EPA has a long history of assessing the environmental risks posed by CCR. Over a period of nearly 30 years, the EPA has c onsistently and unequivocally reported both to the U.S. Congress and the general public that CCR does not exhibit hazardous waste characteristics. In 1976, Congress enacted RCRA to regulate the disposal of a growing volume of municipal and
industrial waste s. Members of Congress recognized the public policy implications of this legislation on the nation’s energy independence and expressed concern that RCRA would create an incentive for electric utilities to switch from domestic coal to foreign oil. To addres s those concerns, Congress amended RCRA in 1980 (hereafter “Bevill Amendment”) to single out CCR for special consideration and required the EPA to demonstrate that the regulation of CCR would not discourage its beneficial reuse by imposing unnecessary regu latory costs specifically related to disposal. The Bevill Amendment excluded CCR from regulation as a hazardous waste under RCRA Subtitle C and prescribed a series of statutorily defined environmental and economic assessments that the EPA was required to u ndertake prior to regulating CCR.

Over the course of the next two decades the EPA worked to implement the Bevill Amendment requirements by conducting the statutorily required environmental and economic assessments of CCR. The EPA issued its first reported to Congress in 1998 and, utilizing its own, well

established test methodologies, concluded that large volume CCR

– fly ash, bottom ash, boiler slag, and flue gas desulfurization wastes

– did not exhibit hazardous characteristics and should not be regulate d as a hazardous waste under Subtitle C. The EPA’s subsequent 1993 Regulatory Determination reaffirmed the determination that large volume CCR was not a hazardous waste. Following the 1993 regulatory determination, the EPA began work on assessing low volum e CCR. The EPA reported to Congress in 1999 that low volume CCR also did not warrant regulation as a hazardous waste under Subtitle C. The EPA final Regulatory Determination in 2000 confirmed the 1999 assessment. The EPA’s current proposal to regulate CCR as a hazardous waste under RCRA Subtitle C would be contrary to and inconsistent with EPA’s own findings, test methodologies, the law, and the regulatory construct, based on nearly 30 years of assessment and analysis without any additional or scientificall y

- based evidence that CCR exhibits hazardous characteristics. EPA should consider regulation of CCR as hazardous only207

those materials that are hazardous (the exception) rather than regulating all CCR as hazardous (the rule). Response: The Agency acknowledges and appreciates the comment. 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 and to defer the Bevill Regulatory Determination

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06299

- 6 

### Organization 1 

### : MidAmerican Energy Holdings Company (MidAmerican) 

### Commenter 1 : Cathy S. Woollums Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### C omment Excerpt Text:
3. One Size Doesn’t Fit All

– As reflected in the Bevill Regulatory Determination, an inflexible,

one

- size

- fits

- all Subtitle C hazardous waste program is not appropriate as it fails to account for the diverse nature of CCR disposal fac ilities. EPA previously explained as part of the Bevill Regulatory Determination Federal Register notice that “...since sites vary widely in terms of hydrological characteristics (e.g., depth to groundwater, annual rainfall, distance to drinking

water source s, soil type) and the wastes’ potential to leach into the groundwater and travel to exposure points is linked to such factors, it is more appropriate for individual States to have the flexibility necessary to tailor specific controls to the site...specific r isks posed by these wastes.” [FN 3: See 58 Federal Register at 41477] The inflexible, one

- size

- fits

- all nature of the Subtitle C program does not take into consideration geographical and other site specific factors that affect environmental and safety risk s, nor does it take into consideration that not all CCR materials are created equally.

It is, therefore, paramount that any final CCR rule account for diverse site specific factors, including geologic conditions, and proximity to groundwater and/or surfac e water. The diverse nature of CCR disposal facilities is demonstrated by MidAmerican’s operating entity, PacifiCorp which operates coal

- fueled generating facilities in Wyoming that have no private residences (or any other development) within many miles of the facilities. Obviously, the distance to drinking water sources for human or other consumption will be inherently different for these PacifiCorp facilities when compared to electric generating plants in more densely populated regions of the country, inc luding the east coast. Likewise, PacifiCorp operates a coal

- fueled electric generating facility in Wyoming where groundwater studies have shown that the water in the ash impoundments is of a higher quality than the area’s natural groundwater. It is importa nt for the EPA to account for these site specific differences in a final rulemaking. Unfortunately, the inflexibility of the Subtitle C program will fail to account for these diverse factors and will not allow individual states the flexibility necessary to tailor site specific controls to site

- specific
risks.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under208

subtitle D of RCRA and to defer the Bevill Regulatory Determination

. The commenter is also referred to Unit V of the preamble for a discussion of the subtitile D approach.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 35 

### 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: Ex amine Context Assigned/Due:
Other Sections: 2.1.3 3.1.2 

### Comment Excerpt Text: A. Subtitle C Regulation Is Technically Not Applicable to CCBs and Would Be Prohibitively Expensive and Counterproductive, Without Commensurate Human Health or Environmental
Benefits.

EPA seeks comment on regulation of CCBs destined for disposal in landf ills or received in surface impoundments as listed “special wastes” under EPA’s Subtitle C proposal. This proposal is both technically and legally flawed.

In accordance with 40 C.F.R. 261.11(a)(3), EPA may list a waste as hazardous if, after evaluating t en individual criteria, EPA concludes that “the waste is capable of posing a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed.” [Footnote 105: 75 Fe d. Reg. at 35166.] For a number of reasons, EPA has failed to meet this necessary standard. Among those reasons are (1) the scope of the proposed listing is overly broad; (2) EPA has not identified or evaluated other federal and state regulatory programs a pplicable to CCBs as required by the listing criteria; and (3) EPA’s draft screening analysis involving potential risks for CCB fugitive dust emissions is overly conservative. In addition, Southern Company agrees with and adopts USWAG’s comments regarding EPA’s improper characterization of CCBs as a “special waste.” [Footnote 106: See USWAG Comments, supra note 41, at Part VI.]

In the Bevill Amendment, Congress directed EPA to make a determination regarding whether CCBs warrant regulation under RCRA’s Sub title C hazardous waste program. [Footnote 107: 42 U.S.C. 6921(b)(3)(A)(ii); 40 C.F.R. 261.4(b)(4). ] EPA completed the statutorily mandated Bevill determination process for CCBs considering earlier Reports to Congress, Regulatory Determinations, and input from numerous stakeholders after years of study, and EPA concluded in its final Regulatory Determination that CCBs do not warrant regulation under RCRA’s Subtitle C hazardous waste regulations. [Footnote 108: See generally 65 Fed. Reg. 32214 (May 22, 2000 ). In its first CCB Regulatory Determination in 1993, EPA concluded that, given that “the potential for damage from these wastes is most often determined by site

- or region

- specific factors,” the “current State approach to regulation” under Subtitle D of R CRA is most209

appropriate. 58 Fed. Reg. 42466 (Aug. 9, 1993). EPA specifically explained, “[I]t is unlikely that Subtitle C would effectively address the problems associated with the four large

- volume fossil

fuel combustion wastes [CCBs] without imposing unn ecessary costs.” Id. at 42477. EPA stated again in 1999 that RCRA “Subtitle C is inappropriate to address any problems associated with disposal of these wastes and that the continued use of site and region specific approaches by the states [under RCRA Subt itle D] is more appropriate for addressing the limited human health and environmental risks that may be associated with disposal of these wastes.” EPA, REPORT TO
CONGRESS: WASTES FROM THE COMBUSTION OF FOSSIL FUELS 3

- 5 (1999). EPA
reaffirmed that CCBs do n ot warrant hazardous waste regulation in its 2000 Regulatory Determination, concluding that “the [S]ubtitle D regulations are the most appropriate mechanism for ensuring that [CCBs] disposed in landfills and surface impoundments are managed safely.”
65 Fed . Reg. at 32221.] Instead, EPA determined that regulation of CCBs as non

- hazardous waste under Subtitle D of RCRA would be fully effective in protecting human health and the environment.[Footnote 109: 65 Fed. Reg. at 32221.] EPA’s conclusions were based in substantial part on the fact that CCBs do not exhibit the “toxicity” characteristic (or any of the other characteristics of Subtitle C waste), based on the TCLP, which EPA uses to determine toxicity for purposes of RCRA. [Footnote 110: See 75 Fed. Reg. at 35137

- 38.]

Southern Company agrees with EPA’s prior determinations that CCBs do not warrant regulation as a hazardous waste under RCRA Subtitle C. The information gathered since EPA’s May 22, 2000, Regulatory Determination does not warrant any different conclusion today. Regulation of CCBs as a hazardous waste under RCRA Subtitle C would create inappropriate and unnecessary regulatory compliance burdens, including Subtitle C hazardous waste storage, treatment, disposal, corrective action, and unit closur e requirements. For example, regulation of CCBs under Subtitle C would result in major disposal capacity shortfalls because many CCB generation facilities would be unable to comply with the regulations in a timely and economically feasible manner. EPA conc luded in 1993 that “the potential for damage from these wastes is most often determined by site

- or region

- specific factors.” [Footnote 111: 58 Fed. Reg. at 42466.] Therefore, imposing Subtitle C regulations would eliminate states’ flexibility to take
the most effective siteand region

- specific approaches to CCB management by imposing uniform and often inappropriate federal hazardous waste standards on this non

- hazardous material.

Moreover, implementing the Subtitle C proposal would be prohibitively expens ive. By EPA’s own estimate, Subtitle C compliance costs for utilities would be at least three times higher than the “identical” controls under the Subtitle D proposal (average annual cost of $1.47 billion for the entire industry under the Subtitle C propos al versus $587 million under the Subtitle D proposal for the next 50 years). [Footnote 112: 75 Fed. Reg. 35128, 35213 (June 21, 2010).] EPA concedes that its estimate of Subtitle C costs does not include the costs for complying with certain significant com ponents of the Subtitle C regulations, including the costs of facilities having to retrofit or upgrade CCB management units to meet the Subtitle C storage design operating standards. [Footnote 113: Id. at 35212.] Southern Company believes EPA’s estimate is grossly understated. By comparison, Southern Company’s pre

- screening costs of the proposed Subtitle C requirements are between $12.5 and $22 billion for the entire Southern Company system alone.

In addition to agreeing with EPA’s prior determinations, S outhern Company agrees with210

USWAG comments explaining that EPA cannot legally reverse its previous determinations that CCBs do not warrant regulation under Subtitle C.[Footnote 114: USWAG Comments, supra note 41, at Part III. ]Specifically, Congress establ ished a detailed process by which EPA could determine whether and how to regulate CCBs under RCRA Subtitle C. EPA has completed that statutory decision

- making process

— determining in its 2000 final CCB Regulatory
Determination that CCBs do not warrant Subti tle C regulation

— and RCRA does not authorize EPA to now reverse that final Regulatory Determination. It is a fundamental principle of administrative law that an agency’s authority to act must come directly from Congress and that absent that authority, an a gency may not act. [Footnote 115: See, e.g., U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 566 (D.C. Cir. 2004). ] The Bevill Amendment contains no grant of authority for EPA to reverse a final regulatory determination that the agency has already properly
reach ed pursuant to the Amendment’s prescribed procedures and deadlines. If EPA wishes to once more undertake the statutorily prescribed process for reaching a final Regulatory Determination for CCBs, it must obtain this authority from Congress. [Footnote 116: Southern Company supports USWAG’s comments on this issue. For further discussion, see USWAG Comments, supra note 41, at Part IV.]

EPA is also considering defining CCBs as a “special waste” under the Subtitle C proposal. This designation would not amelior ate the consequences of Subtitle C coverage. As EPA notes, treatment of CCBs as a “special waste” would include regulation

—

from the point of their generation to the point of their final disposition, including during and after closure of any disposal uni t. This would include the generator and transporter requirements and the requirements for facilities managing CC[B]s, such as siting, liners (with modification), runon
and run

- off controls, groundwater monitoring, fugitive dust controls, financial assuranc e, corrective action, including facility

- wide corrective action, closure of units, and post

- closure care (with certain modifications). In addition, facilities that dispose of, treat, or, in many cases, store, CC[B]s also would be required to obtain permits for the units in which such materials are disposed, treated, and stored. [Footnote 117: 75 Fed. Reg. at 35133.]

Designation of CCBs as either a hazardous waste or special waste under the Subtitle C proposal would effectively reverse decades of progress in the beneficial use of a valuable product. The potential benefits of the Subtitle C proposal are less than the potential benefits from either the Subtitle D proposal or a Subtitle D Prime approach. [Footnote 118: See id. at 35134 (Table 1).] Regulation o f CCBs under Subtitle C would have even more substantial negative effects than regulation under Subtitle D or “D Prime,” including greater job losses and higher electric rates for consumers, without corresponding benefits to environmental protection.

As discussed in Part II.A above, as among EPA’s three regulatory options, a modified Subtitle D Prime approach, properly developed with additional state regulatory oversight provisions, would be more flexible, practical, and effective than the Subtitle C prop osal (or Subtitle D proposal). A modified Subtitle D Prime approach provides the same level of protection of human health and the environment with less duplication or preclusion of ongoing state and private efforts. Recognizing the importance of site

- and region

- specific controls, state agencies are better suited than EPA to administer any new requirements. Accordingly, for the reasons stated below, Southern Company recommends that EPA reject the inappropriate Subtitle C proposal211

Response: The Agency ackno wledges and appreciates the comment. 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 and to defer the Bevill Regulatory Determination

. The commenter is also
referred to Un it V of the preamble for a discussion of the subtitle D approach. 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

- 06339

- 3 

### Organization 1 

### : Arizona Electric Power Cooperative, Inc. 

### Commenter 1 : Theresa D. Legere Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 2.1.5 

### Comment Excerpt Text: 2) Subtitle C Regulation violates the clear language and the legislative purpose of the Bevill Amendment to RCRA In 1980, Congress amended RCRA with the passage of the Bevill Amendment to ensure that EPA would not inappropriately subject CCRs to hazardous was te regulation. The amendment was intended to avoid the excessive costs associated with Subtitle C regulation of CCRs and to promote their beneficial use. In fact, the sponsors of the Bevill Amendment specifically stated their concerns regarding the fate of beneficial use of CCRs under Subtitle C regulation of CCRs. For example, Representative Bevill stressed that a primary purpose of his amendment was to support the “national commitment to encourage reuse of such materials as fly ash.”[Footnote 16: 126 Cong . Rec. at 3362.] Representative Findley advised that if CCRs were regulated under Subtitle C, the “flourishing industry which recycles these byproducts would be gravely disrupted and possibly closed down.”[Footnote 17: Id. at 3363.] Representative Harley S taggers stated bluntly that regulation of CCRs as a hazardous waste “would run counter to one of the principal designs of [RCRA]

– conservation of valuable material.”[Footnote 18: Id. at 3364

- 65.]

The Bevill Amendment addressed these concerns by suspend ing EPA’s authority to regulate CCRs under Subtitle C of RCRA unless and until the Agency completed a study and reported to Congress on whether such regulation was warranted. With completion of the study and submission of the corresponding Report to Congre ss, the Bevill Amendment required EPA to make a final regulatory determination regarding whether CCRs should be regulated under
Subtitle C.

The Bevill Amendment required the Agency to base this final regulatory determination “on information developed or accumulated pursuant to [the RCRA § 8002] study, public hearings, and comment. . . .”[Footnote 19: RCRA § 8002(n), 42 U.S.C. § 6982(n).] EPA submitted its first212

Report to Congress on March 8, 1988, concluding that fly ash, bottom ash, boiler slag, and flu e gas emission control waste generally do not exhibit hazardous characteristics under RCRA. Accordingly, EPA stated that it did not intend to regulate those four large

- volume coal combustion waste streams. The initial report went on to encourage the utiliz ation of coal combustion wastes to the extent that such utilization could be done in an environmentally safe manner. Six months later, EPA reiterated in its first Regulatory Determination the conclusion that hazardous waste regulation was not warranted for those four large

- volume coal combustion

waste streams.

In short, EPA could only reach the decision to regulate CCRs under Subtitle C after following a statutorily prescribed series of steps that involved congressional oversight marked by EPA’s
submissi on of reports to Congress that would inform the relevant congressional committees of jurisdiction of the Agency’s preliminary recommendations. [Footnote 20: 58 Fed. Reg. at 42477.]

The second Report to Congress, submitted in March 1999, again concluded that Subtitle C is inappropriate to address any problems associated with disposal of several other fossil fuel combustion wastes, including CCRs managed with certain low

- volume wastes and that “the continued use of site and region specific approaches by th e states is more appropriate for addressing the limited human health and environmental risks that may be associated with disposal of these wastes.” In May 2000, EPA completed the Bevill Amendment’s statutorily prescribed assessment and reporting process wh en it issued its final Regulatory Determination for all remaining fossil fuel combustion wastes, including CCRs managed with certain low

volume wastes.[Footnote 21: See 65 Fed. Reg. at 32214.] Echoing its first Regulatory Determination, EPA concluded that CCRs and other fossil fuel combustion wastes did not warrant regulation under RCRA’s Subtitle C hazardous waste program, determining instead that regulation as a non

- hazardous solid waste under Subtitle D of RCRA would be appropriate when CCRs are disposed of in landfills or surface impoundments.[Footnote 22: Id.]

Because of their diverse natures, CCR disposal facilities are ill

- suited to regulation under the Subtitle C hazardous waste program. In its final determination that CCRs should not be subject

t o Subtitle C regulation in 2000, EPA stated that “it is more appropriate for individual States to have the flexibility necessary to tailor specific controls to the site or region specific risks posed by these wastes.”[Footnote 23: See NRECA Comments to thi s 2010 Proposed Rule (citing 58 Fed. Reg. at 41477).]

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill213

Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the

s cope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06362

- 3 

### Organization 1 

### : Commenter 1 : Bret Reid, P.E. Commenter Type: Private Citizen
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: The EPA is also going against its own findings. In 1993 and again in 2000, the EPA found that coal ash "did not warrant regulation as a hazardous waste."

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06446

- 1 

### 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 Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt T ext: II. Background of the Bevill Amendment

In 1980, Congress amended (“RCRA”) with the passage of the Bevill Amendment to ensure that EPA would not inappropriately subject CCRs to hazardous waste regulation. The amendment
was intended to avoid the excessive costs associated with Subtitle C regulation of CRs and to promote their beneficial use. The Bevill Amendment addressed these concerns by suspending EPA’s authority to regulate CCRs under Subtitle C of RCRA unless and until the Agency completed a study and reported to Congress on whether such regulation was warranted. With completion of the study and submission of the corresponding Report to Congress, the Bevill Amendment required EPA to make a final regulatory determination regarding whether CCRs should be regulated under Subtitle C. The Bevill Amendment required the Agency to base this final regulatory determination “on information developed or accumulated pursuant to [the RCRA § 8002] study, public hearings, and comment. . . .” RCRA § 8002(n), 42 U.S.C. § 6982(n). In short, EPA could only reach the decision to regulate CCRs under Subtitle C after following a214

statutorily

- prescribed series of steps that involved congressional oversight marked by EPA’s submission of reports to Congress that would inf orm the relevant congressional committees of jurisdiction of the Agency’s preliminary recommendations.

III. Implementation of the Bevill Amendment

EPA submitted its first Report to Congress on March 8, 1988, concluding that fly ash, bottom ash, boiler sl ag, and flue gas emission control waste generally do not exhibit hazardous characteristics under RCRA. Accordingly, EPA stated that it did not intend to regulate those four large

- volume coal combustion waste streams. The initial report went on to encourage the
utilization of coal combustion wastes to the extent that such utilization could be done in an environmentally safe manner. Six months later, EPA reiterated in its first Regulatory Determination the conclusion that hazardous waste regulation was not wa rranted for those four large

- volume coal combustion waste streams. 58 Fed. Reg. at 42477.

The second Report to Congress, submitted in March, 1999, again concluded that Subtitle C is inappropriate to address any problems associated with disposal of several other fossil fuel combustion wastes, including CCRs managed with certain low

- volume wastes and that “the continued use of site and region specific approaches by the states is more appropriate for addressing the limited human health and environmental risks that may be associated with disposal of these wastes.” In May 2000, EPA completed the Bevill Amendment’s statutorily

prescribed assessment and reporting process when it issued its final Regulatory Determination for all remaining fossil fuel combustion was tes, including CCRs managed with certain low

volume wastes. See 65 Fed. Reg. at 32214. Echoing its first Regulatory Determination, EPA concluded that CCRs and other fossil fuel combustion wastes did not warrant regulation under RCRA’s Subtitle C hazardous waste program, determining instead that regulation as a non

hazardous solid waste under Subtitle D of RCRA would be appropriate when CCRs are disposed of in landfills or surface impoundments. Id.

Response: The Agency acknowledges and appreciates the comme nt. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06534

- 7 

### Organization 1 

### : Lafarge North America Inc. 

### Commenter 1 : Brian Gasiorowski on behalf of Craig S. Campbell Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: The current proposal for Subtitle C regulati on, also contradicts EPA’s prior position as stated in the two prior Reports to Congress, which concluded that the regulation of CCRs is not215

warranted. EPA now claims to support an opposite conclusion

– Subtitle C regulation

– and the Report to Congress sh ould be updated to reflect the basis of EPA’s current position. In addition, the public would then have the opportunity to peer review the updated information used by EPA in justifying Subtitle C regulation of CCRs. The seventeen “problem projects” should not be the basis for potentially destroying CCR utilization in the United States

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR und er subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06827

- 2 

### Organization 1 

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

### Commenter 1 : Kenneth E. Raymond Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 3.1.2 

### Comment Excerpt Text: II. The Subtitle C Option is Inconsistent with the Bevill Amendment Briefly, the Bevill Amendment to RCRA was the direct result of Congress's concern that the
U.S. Envi ronmental Protection Agency might discourage the use of coal as one of the nation's primary sources of energy if it prematurely and inappropriately subjected CCRs to regulation under the hazardous waste provisions of RCRA Subtitle C. I Accordingly, when Co ngress enacted the Amendment into law in 1980, it effectively suspended the Agency's authority to regulate CCRs under Subtitle C until the Agency completed a study to determine whether in fact such regulation was warranted and submitted a report to that ef fect to Congress. The Amendment also required the Agency to make a "final regulatory determination" whether to subject CCRs to Subtitle C regulation following submission of the aforementioned report to Congress. In short,
the Bevill Amendment was intended to address Congress's concern by cautioning the Agency not to impose unnecessary and costly regulations on those industries using coal to produce electricity. It also reflects Congress's concern that regulating CCRs under Subtitle C could discourage and pe rhaps end altogether the beneficial use of CCRs. Thus, through the Bevill Amendment Congress singled out CCRs for special consideration by the Agency in determining whether, and how, to regulate them under RCRA, with Subtitle C regulation representing an o ption of last resort. The Agency could reach the decision to regulate CCRs under Subtitle C only after following a statutorily prescribed series of steps that involved congressional oversight marked by the Agency's submission of a report to Congress that w ould inform the relevant congressional committees of jurisdiction of the Agency's preliminary recommendation. The final regulatory determination was to be issued according to a statutorily

imposed deadline and based on public hearings and comments respondi ng to the report to Congress. Shortly after enactment of the Bevill Amendment and completion of the requisite study, the Agency began to prepare its report to Congress by dividing it into two phases. The I Ref. RCRA § 300J(b)(3)(A), 42 U.S.C. § 692J(b)(3)( A). initial phase addressed the management of CCRs216

independent of any other wastes that are generated by coal

- fired power plants during the course of producing electricity. The second phase addressed CCRs that are co

- managed with certain low
volume wastes (i.e. boiler cleaning solutions, boiler blowdown, demineralizer regenerant, pyrites and cooling tower blowdown) that are routinely generated by those plants.
Pursuant to this two

- phased approach, the Agency submitted its first report to Congress in March, 1988. In the report, the Agency concluded that CCRs that are managed independent of the aforementioned low volume wastes generally do not exhibit any of the hazardous characteristics under the current RCRA regulations and therefore do not warrant regulatio n under Subtitle C of RCRA. In August, 1993, the Agency published a final regulatory determination to that effect in which it reiterated that the regulation of CCRs under Subtitle C ofRCRA was not
warranted. Shortly after the August, 1993 final regulatory determination was published, the Agency began work on its second repOtt to Congress on CCRs that are co

- managed with the aforementioned low volume wastes. In March, 1999, the Agency submitted its second report to Congress in
which it concluded that CCRs wh en co

- managed with those wastes do not warrant regulation under Subtitle C of RCRA. In May, 2000, the Agency published a final regulatory determination to that effect in which it reiterated that comanaged CCRs do not warrant regulation under
RCRA's Subtitl e C hazardous waste program. Instead, the Agency indicated that CCRs should more appropriately be regulated under the solid waste provisions of RCRA Subtitle D where they are disposed of in landfills or surface impoundments. In light of the above, the leg al framework by which the two proposed primary regulatory options must be evaluated is the Bevill Amendment. It is OO&E's opinion that the proposed rule's Subtitle C option represents an impennissible reversal of the Agency's final regulatory
determination s for CCRs. Specifically, the proposed Subtitle C option is in direct conflict with the plain language of the Bevill Amendment that established an unambiguous statutory process by which the Agency can determine to what extent CCRs should be regulated under RCRA and which does not provide a mechanism to reverse those determinations. Put another way, having completed the final regulatory determination process for CCRs in May, 2000 pursuant to a statutorily prescribed mandate, the Agency is not at liberty to u ndo that process. Even assuming arguendo that RCRA provides a mechanism for the final regulatory determinations to be reversed, the Agency would still be obligated to adhere to the process that Congress prescribed for making the original detenninations, in cluding providing a report to Congress that sets forth its recommendation to reverse those determinations. In short, OO&E believes that the Agency has ignored the statutory process by including the Subtitle C option in the proposed rule.
While OO&E has sev eral concerns with the Subtitle D option, it nevertheless represents a more appropriate regulatory structure under which the Agency could promulgate federal regulations for CCRs. Under the Subtitle D option, the Agency would not be attempting to reverse it s final regulatory determinations for CCRs and run afoul of the statutory process established by Congress. Instead, by promulgating federal non

- hazardous solid waste regulations for the disposal of CCRs under Subtitle D of RCRA, CCRs would remain classifie d as a non

- hazardous solid waste and the Agency could develop nationwide self

- implementing regulations for CCR disposal facilities

Response: The Agency acknowledges and appreciates the comment. 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.217



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06849

- 9 

### Organization 1 

### : Little Village Environmental Justice Organization (LVEJO) 

### Co mmenter 1 : Keith Harley Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: U.S. EPA’s rulemaking “alternatives” fail to account for strict limits on its authority under RCRA in light of the Supreme Court’s decision in City of Chicago v. EDF. LVEJO asserts that U.S. EPA has significantly overestimated its authority under RCRA to e xempt CCR, and the facilities that generate it, from Subtitle C.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit II of the preamble for a discussion of the Agency statutory authority. The

commenter is al so referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06863

- 12 

### 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: 2.1.3 2.1.1 

### Comment Excerpt Text: EPA completed the Bevill regulatory process for CCRs in 2000; the statute does not auth orize EPA to reverse that decision. EPA has completed the Bevill process pursuant to a judicially

imposed deadline and determined, in accordance with the congressionally

- mandated decision

making process, that CCRs do not warrant regulation under Subtitle C . The statutory decision

making process is complete and RCRA does not authorize EPA to decide to “take a second bite at the apple” and reverse its final CCR Regulatory Determinations in a manner of its own choosing. Congress established a detailed process by which EPA could determine whether and how to regulate CCRs under RCRA Subtitle C. EPA has completed that statutory process, determining that CCRs do not warrant regulation under RCRA Subtitle C, and concluded instead that CCRs warrant regulation under RCRA’s Subtitle D non

- hazardous waste program. The statute does not contemplate, let alone authorize, EPA undertaking another round of the Bevill decision

- making for CCRs. If it did, the statutory process and its associated deadlines for reaching a final
R egulatory Determination would have no meaning, and EPA could continually change its mind in an abbreviated fashion, as illustrated by the proposed Subtitle C option.218

If EPA wishes to once more undertake the statutorily

- prescribed process for reaching a fi nal regulatory determination for CCRs, it must obtain this authority from Congress. If Congress were to grant EPA such authority, it would be reasonable to expect that Congress would establish new statutory deadlines and perhaps new and different statutory study factors for EPA to evaluate in undertaking an additional regulatory determination for CCRs. Absent such authority from Congress, the Agency is not empowered to alter its final 1993 and 2000 Regulatory Determinations for CCRs. Therefore, EPA cannot l egally pursue the Subtitle C option.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06868

- 1 

### Organization 1 

### : Cleco Corporation 

### Commenter 1 : Bill Matthews Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Exce rpt Text: Cleco finds the arguments in the USWAG Comments to be most compelling. One of the major items referred to throughout the USWAG Comments is the Bevill Amendment. A most interesting and accepted point drawn from the Bevill Amendment, the legislativ e history of the Amendment and court statements concerning the Amendment is that EPA cannot reverse it's CCR regulatory determinations, in 1993 and 2000, to regulate coal combustion residuals through the Subtitle D program. Cleco agrees with this deduction described in the USWAG Comments and urges EPA to comply with the Bevill Amendment requirements.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06956

- 2 

### Organization 1 

### : Tri

- State Generation & Transmission 

### Commenter 1 : Barbara A. Walz Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: A. The Rulemaking Record Supports The Subtitle D Option At the outset, it is important to reiterate that the development of Subtitle D non

- hazardous waste219

regulations for CCRs is fully consistent with the rulemaking record; in fact, it is the only lawful option available to the Agency. The development of Subtitle D regulations would be the appropriate outgrowth of EPA’s two Reports to Congress and two final Regulatory Determinations under the Bevill Amendment declaring that CCRs do not warrant hazardous waste regulation under RCRA Subtitle C, but rather should remain the provinc e primarily of state regulatory programs under RCRA Subtitle D. Throughout its 20

- year study and issuance of the required Reports to Congress and final CCR Regulatory Determinations, EPA has consistently found that the Subtitle D approach, with active stat e involvement, was the appropriate regulatory course for CCRs. In its first CCR Regulatory Determination in 1993, EPA concluded that, given that “the potential for damage from these wastes is most often determined by site

- or region

- specific factors,” the “current State approach to regulation” under RCRA Subtitle D is most appropriate. EPA echoed this finding in its second Report to Congress in 1999, concluding once again that RCRA Subtitle C is inappropriate to address any problems associated with disposal of these wastes and that the continued use of site and region specific approaches by the states under RCRA Subtitle D is more appropriate for addressing the limited human health and environmental risks that may be associated with disposal of these wastes. EPA reaffirmed the appropriateness of the Subtitle D option in its 2000 CCR Regulatory Determination, concluding that the Subtitle D regulations are the most appropriate mechanism for ensuring that CCRs disposed in landfills and surface impoundments are m anaged safely. In addition to the fact that CCRs rarely exhibit a hazardous waste characteristic, EPA explained that the decisive factors in reaching its final determination that CCRs do not warrant regulation under RCRA’s Subtitle C hazardous waste regula tions were: (1) improving trends in present CCR disposal and utilization practices (per the Bevill study factor in 8002(n)(2)), (2) the current and potential utilization of CCRs (i.e., beneficial use), per the Bevill study factor in 8002(n)(8), and (3) Con gress' admonition in the Bevill Amendment against duplication of efforts by other federal and state agencies. In concluding that Subtitle D was the appropriate regulatory path forward, EPA also pointed to the 1999 Report to Congress, that stated “the utili ty industry has made significant improvements in its waste management practices over recent years and to similar record evidence that state [CCR regulatory] programs have, in fact, substantially improved over the last 15 years or so."
EPA found that "the a bility for most states to impose specific regulatory controls for coal
combustion wastes has increased almost three

- fold over the past 15 years”. EPA concluded 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. Critically, this positive trend has continued, with EPA and DOE finding in their joint 2007 Report of state CCR controls that [t]he data and analyses documented in this report provide new information that appears to show improved management of CCWs in both landfills and surface impoundments

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preamble for a discussion on our d ecision to regulate CCR under
subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06987

- 17 

### Organization 1 

### : Entergy Services, Inc.220



### Commenter 1 : Joseph Hantz Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.1 2.1.3 

### Comment Excerpt Text: In the event that Congress were to grant EPA the authority to undertake an additional regulatory determination for CCRs, Congress could establish new and differ ent statutory deadlines and perhaps new and different statutory study factors for EPA to evaluate. Absent such authority from Congress, Entergy does not believe that EPA may alter its final 1993 and 2000 regulatory determinations for CCRs, nor pursue its S ubtitle C proposed option.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07047

- 4 

### Organization 1 

### : Great River Energy 

### Commenter 1 : Erik Silvola Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Exce rpt Text: EPA itself has determined on two occasions (1993 and 2000 Final Determinations) that CCR properties do not warrant their regulation as a hazardous waste.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07802

- 2 

### Organization 1 

### : Alpha Natural Resources 

### Commenter 1 : Michael R. Peelish Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.1 2.1.3 

### Comment Excerpt Text: The proposed rule is illegal because it violates the Bevill Amendment to RCRA which specifically limits EPA's ability to regulate CCR. EPA can consider CCR regulation only in221

extremely limited circumstances and only after extensive analysis of the science and risk issues associated with CCR disposal. On two prior occasions, in 1993 and 2 000, EPA issued comprehensive reports pursuant to the Bevill Amendment regarding CCR and in both instances determined that CCR should not be regulated under Subtitle C. The 2000 determination noted the array of potential issues, but found that those issues did not justify or require the extreme cost and difficulty of regulating such a vast quantity of low risk material under Subtitle C.

As an initial matter, EPA's action here is illegal because EPA no longer has any authority to regulate CCR as a hazardous waste. Having submitted the required report and mage its determination that regulation of CCR as a hazardous waste is unwarranted, EPA is done. The Bevill Amendment has no language allowing EPA to revisit its determination. Unless or until Congress amends RCRA to grant EPA the authority to reconsider its 2000 findings, EPA has no authority to regulate CCR as a hazardous waste.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preamble for a di scussion on our decision to regulate CCR under
subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08229

- 5 

### Organization 1 

### : Alabama Public Service Commission 

### Commenter 1 : John D. Free Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 3.1.2 

### Comment Excerpt Text: Previously, the EPA determined that CCBs do not warrant regulation as a RCRA Subtitle C
hazardous waste. The APSC understands that EPA issued two formal reports to Congress, in 1988 and 1999, in which it concluded that CCBs do not warrant regulation as a hazardous substance. In addition, in 1993 and 2000, the EPA issued formal regulatory determinations that the preferable approach for regulatin g CCBs was under RCRA Subtitle D, and not Subtitle C, as the latter course would adversely impact CCB beneficial use. The APSC agrees with that
conclusion.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08229

- 7 

### Organization 1 

### : Alabama Public Service Commission 

### Commenter 1 : John D. Free
C ommenter Type: State Government222

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: In this respect, the APSC questions the need for any drastic change to existing practic es, especially when CCBs are being managed and utilized in a manner that is sufficiently protective of human health and the environment. Stated differently, the APSC is not convinced that a single failure of a CCB impoundment facility, namely the TVA Kings ton spill, by itself justifies the conclusion that CCBs are hazardous and that all existing disposal facilities and practices should be eliminated in favor of new, extremely costly approaches. To this end, the APSC is not aware of any conclusive findings o r information that refutes the previous determinations made by EPA regarding the need to regulate CCBs as hazardous substances.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08244

- 1 

### Organization 1 

### : Edison Mission Energy, LLC 

### Commenter 1 : Basil G. Constantelos Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text:
III. EPA’S PROPOSAL TO LIST CCRs AS A “SPECIAL WASTE” SUBJECT TO RCRA SUBTITLE C REQUIREMENTS IS NOT SUPPORTED BY THE AVAILABLE DATA AND
IS CONTRARY TO LAW A little over 30 years ago, Congress reauthorized RCRA and exempted from regulation as a hazardous waste specif

ic large

- volume wastes generated from the combustion of coal or other fossil fuels [Footnote 2: See Section III.A for a more thorough discussion of the Congressional exemption of CCRs.]. Congress also directed EPA to conduct a detailed and comprehensive

st udy based on eight study factors and to submit a Report to Congress on “the adverse effects on human health and the environment, if any, of the disposal and utilization of fly ash waste, bottom ash waste, slag waste, flue gas emission control waste, and ot her byproduct materials generated primarily from the combustion of coal or other fossil fuels.”[Footnote 3: 42 U.S.C. § 6982(n).] Congress was concerned then, as it undoubtedly would be today, that such a listing would unfairly burden coal

- fired EGUs and a s a result would diminish an important domestic energy

source

– while being unnecessary to protect human health or the environment. EPA has conducted a number of studies and issued determinations since that time all supporting the exemption of CCRs from re gulation under Subtitle C. The first Report to Congress (“RTC”) was published in 1988 and addressed the eight study factors required under Section 8002(n) of RCRA for CCRs from electric utilities. Based on the RTC, EPA developed the following three prelimi nary findings: 1) Large

- volume wastes

– The majority of materials present in the four largevolume wastes are not of major concern. Although trace constituents in the wastes may, in some instances, present223

risks to human health and the environment, EPA’s re view of the data suggested that these wastes rarely do not exceed the RCRA TC thresholds [Footnote 4: In evaluating Large

- Volume Coal

Fired Utility Wastes, EPA said, "The Agency has determined that these wastes exhibit the
characteristics of hazardous wast e infrequently, from 0 to 7 percent of the samples depending on the waste type," and that this analysis indicates that the “waste[s] rarely exhibit any characteristics of hazardous waste and the waste pose very limited risk to human health or the
environme nt...” 58 Fed. Reg. 42,446, 42476 (Aug. 9, 1993) (emphasis added).] In addition, the RTC concluded that current waste management practices appear to be adequate for protecting human health and the environment and that regulation of large volume CCRs under Su btitle C
was not warranted. 2) Low

- volume wastes

– Several low

- volume wastes typically generated by coalfired electric utilities may exhibit the hazardous waste characteristics of corrosivity and toxicity and that the Agency was considering removing the ex emption for low

- volume wastes. 3) Waste utilization

– EPA concluded that waste utilization practices appeared to be conducted in an environmentally safe manner[Footnote 5: U.S. EPA, Report to Congress: Wastes from the Combustion of Coal by Electric Utility Power Plants, EPA/530

- SW

- 88

- 002 at ES

- 6

– ES

- 8 (Feb. 1988).]. EPA would eventually issue a regulatory determination in 1993 finding that the large volume
CCRs from coal

- fired EGUs should not be regulated under Subtitle C. The second report to Congress, is sued in 1998, covered CCRs from coal

- fired EGUs that were disposed with other wastes, as well as CCRs from the non

- utility sector. On May 22, 2000, EPA published a Notice of Regulatory Determination on Wastes From the Combustion of Fossil Fuels. The determ ination applied to all remaining fossil fuel combustion wastes other than high volume CCRs from EGUs that were managed separately, which were addressed in the 1993 regulatory determination. In the May 2000 determination, EPA concluded that: [T]hese wastes do not warrant regulation under subtitle C of RCRA and is retaining the hazardous waste exemption under RCRA section 3001(b)(3)(C). However, EPA has also determined national regulations under subtitle D of RCRA are warranted for coal combustion
wastes when they are disposed in landfills or surface impoundments, and that regulations under subtitle D of RCRA (and/or possibly modifications to existing regulations established under authority of the Surface Mining Control and Reclamation Act (“SMCRA”)) are warra nted when these wastes are used to fill surface or underground mines [Footnote 6: For a more complete discussion of the 1993 and 2000 determinations, please see Sec. III D. 1. a. Notice of Regulatory
Determination on Wastes From the Combustion of Fossil Fu els, 65 Fed. Reg. 32,214, 32,214 (May 22, 2000).]. Given the issues studied and the consideration of how CCRs should be regulated under RCRA over the years, the Agency’s current proposal to list CCRs destined for disposal as “Special Wastes” subject to RCR A Subtitle C is at odds with its prior determinations, not supported by the data in the administrative record, and does not comply with the applicable legal requirements for regulating solid wastes under Subtitle C

Response: The Agency acknowledges and ap preciates the comment. 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.224



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08244

- 5 

### Organization 1 

### : Edison Mission Energy, LLC 

### Commenter 1 : Basil G. Constantelos Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.1 2.1.3 

### Comment Excerpt Text: D. EPA’s Subtitle C Proposal Is Premised On A Dramatic Overstatement Of The Risks Posed By
CCRs In addition to its unjustified lumping of CCR materials into one class, this Section explains why, based on the data presented in the record, EPA has not satisfied its burden under RCRA of establishing that the CCRs (whether considered in the aggregate or individually) “typically or frequently are hazardous.”[Footnote 61: 40 C.F.R. § 261.11(b) (emphasis added).] EPA’s suggestion that these materials pose a substantial risk is premised on: (1) a risk assessme nt that dramatically overstates the real risks posed by CCRs, and (2) a limited number of damage cases that EPA claims show the dangers posed by these materials (see Section III.D.2 below), even though those damage cases are not relevant to the risks posed by these materials based on their
inherent characteristics. 1. To Support Its Determination That Subtitle C Applies, EPA’s Recent CCR Risk Assessment Relies On Overly Conservative Assumptions That Are Plainly Inconsistent With Prior
Assessments EPA justif

ies its proposal to regulate CCRs under Subtitle C based in large part on the results of its 2003 risk assessment, which it alleges supports a determination that these materials should be subject to the hazardous waste generation, storage and disposal requ irements of Subtitle C. EPA’s new assessment is problematic because (i) it represents a 180

- degree reversal from prior assessments prepared by the Agency looking at CCR disposal issues, and (ii) it relies on unrealistic, overly conservative assumptions and modeling to support its risk conclusions (i.e. scenarios that are atypical and infrequent, to the extent that they would ever arise in the real world). As such, the administrative record developed by EPA does not support its proposal to regulate CCRs unde r Subtitle C.
a. Prior CCR Assessments In October, 1980, Congress amended RCRA, adding a provision, known as the Bevill Amendment, to temporarily exclude large volume wastes from fossil fuel combustion from regulation under Subtitle C unless/until EPA cond ucted a study that considered the following eight factors as a prerequisite to taking any such regulatory action:[Footnote 62: See Section III.A above for a more complete discussion of the legal implications of the Bevill amendment.]
1. Sources and volumes of such materials generated per year; 2. Present disposal and utilization practices; 3. Potential danger, if any, to human health and the environment from the disposal and reuse of such materials; 4. Documented cases in which danger to human health or the environment from surface runoff or leachate has been proven; 5. Alternatives to current disposal methods; 6. Costs of such alternatives;225

7. Impact of those alternatives on the use of coal and other natural resources; and 8. Current and potential utilizati on of such materials. Congress gave EPA six months to complete the study required by the Bevill Amendment. EPA issued an initial temporary exclusion, pending a report to Congress that was eventually issued in
1988. No further action was taken until a lawsu it was filed to compel the Agency to make a formal regulatory determination. EPA entered into a consent decree with all parties to that litigation that provided a schedule for making regulatory determinations on two separate categories of wastes. EPA would first make a determination regarding fly ash, bottom ash, boiler slag, and FGD wastes, by August 2, 1993. EPA agreed to make a determination on all other wastes under the Bevill Amendment by April 1, 1998, although that deadline was subsequently
extended [Footnote 63: EPA presents the full chronology of its prior regulatory actions with respect to CCRs in Appenix A of its Regulatory Risk Assessment, including a complete history of the various determinations. See EPA, Appendix for Regulatory Impact Analysis , 4

- 6 (April 30, 2010).]. In 1993, EPA issued its first official regulatory determination that regulation of CCR materials under Subtitle C was not appropriate for fly ash, bottom ash, FGD wastes, and boiler slag [Footnote 64: 58 Fed. Reg. 42,466

- 67.]. EPA based this determination on its conclusion that (i) the materials posed low risks, (ii) there were sufficient state and federal regulatory controls,[Footnote 65: EPA reviewed regulations in the 17 states that represented approximately 70 percent of coal a sh in the U.S., and found that all but one required operating permits, 12 had mandatory liner and groundwater monitoring requirements, and three states had authority to impose liner requirements on a case

- by

- case basis. 14 regulated CCRs as solid wastes, t wo had requirements based on waste characteristics, and one exempted CCRs completely. As a result, EPA found that “State regulatory programs are generally adequate.” Id. At 42,476.] and (iii) the risks from the wastes were dictated by site

- specific charact eristics at disposal sites, such as groundwater flow and soil properties, rather than uniform characteristics inherent to the residuals themselves, such that regulating CCR materials as hazardous wastes was neither scientifically sound nor justified as a m atter of policy [Footnote 66: “Since [CCR] sites vary widely in terms of topographical, geological, climatological, and hydrological characteristics (e.g., depth to groundwater, annual rainfall, distance to drinking water sources, soil type) and the wastes ' potential to leach into the groundwater and travel to exposure points is linked to such factors, it is more appropriate for individual States to have the flexibility necessary to tailor specific controls to the site or region specific risks posed by thes e wastes.” Id. at 42,477]. The Agency noted that although there were a few groundwater samples which exceeded drinking water standards, they would not likely lead to any human exposures at that level due to dispersion in the groundwater
and a lack of drink ing water sources downstream of coal plants or disposal sites [Footnote 67: Id. at 42,475.]. In addition, the agency estimated that the cost to industry of listing under subtitle C could increase from $800 million annually under the existing disposal frame work to between $3.7 and $5 billion [Footnote 68: Id. at 42,467

- 68.]. At the time, the Agency did not take a position on regulation under Subtitle D, but when it was presented with the suggestion that CCR landfills and impoundments be regulated similarly to MSW landfills (40 CFR part 258), EPA responded that: [w]hile the Agency believes that design and operating requirements similar to part 258 may be appropriate for some...[CCR] waste management units, the risks posed by...[CCR] waste management are site

- spec ific. Although groundwater contamination has occurred at certain coal combustion waste sites, contamination has been due to a limited number of constituents, which226

are likely to attenuate and dilute to safe levels before reaching an exposure point. This is in contrast to municipal solid waste landfills that are subject to 40 CFR part 258. The leachate at these sites often contains elevated levels of a wide range of toxic pollutants, and numerous damages have been observed. Therefore, the Agency believes tha t the level of protection provided by the part 258 criteria may not need to be universally applied to all...[CCR] waste management units. It is therefore appropriate to allow the States to retain the flexibility to tailor requirements to site

- specific or reg ional factors rather than establish broad Federal minimum requirements. It should be noted that many States have adopted regulatory requirements for...[CCR] waste management units comparable to the part 258 criteria. EPA will consider these wastes as part of the Agency’s ongoing assessment of industrial non

- hazardous wastes under RCRA Subtitle D [Footnote 69: Id. at 42481 (emphasis added).]. EPA published its next risk assessment, for combined wastes and other non

- utility fossil fuel wastes, in 1998 in draft form. Based on the analysis in the 1998 draft risk assessment, EPA issued a report to Congress recommending against Subtitle C regulation, with the possible exception of the agricultural use of CCRs [Footnote 70: EPA, Report to Congress Wastes from
the Com bustion of Fossil Fuels Volume 1

– Executive Summary, 3

- 5 (March 1999).]. In the 1998 draft risk assessment and the associated report to Congress, EPA concluded that risks were below the toxic and cancer risk levels of concern, with only arsenic generatin g cancer risks in EPA’s Monte Carlo model of greater than 1x10

- 6, ranging from 4x10

- 5 to 2x10

- 5 [Footnote 71:
Id. at 3

- 2

- 3

- 3 (March 1999).]. However, EPA received numerous technical comments on the groundwater transport model, EPACMTP, that it was unable to address in time to meet the consent decree timeline for releasing its final regulatory determination on the remaining waste categories. As a result EPA did not base its 2000 determination on the results of the EPACMTP model, for fear that it was inaccu rate. EPA concluded that its 1998 leachate modeling (based on the EPACMTP model) overestimated generation and concentrations over time, in part because it was based on a small sample size that gave an overly strong weight to a single facility’s worst

- case observation, and thus may not have accurately reflected actual leachate conditions [Footnote 72: EPA, Ground

- Water Pathway Human Health Risk Assessment, p. 8

- 2 1998 (Revised Draft Final).]. Therefore, EPA instead relied on surveys of hazardous constituents in CCRs, noting that samples of CCR wastes rarely
exceeded hazardous waste characteristic levels: Fossil fuel wastes infrequently exceed the hazardous waste characteristic. For comanaged wastes, 2% (1 of 51 samples) exceeded the characteristic level. For individual wastes streams, 0% of the coal bottom ash, 2% of the coal fly ash, 3% of the coal flue gas desulfurization, and 7% of the coal boiler slag samples that were tested exceeded the characteristic level [Footnote 73: 65 Fed. Reg. at 32,222.].
At the time, the only concern expressed by the Agency related to the potential for the leaching of arsenic out of the CCR materials. However, in 1993 EPA found that improvements in state and federal regulation would likely address the outstanding concerns:
Noneth eless, given most of the states’ current regulatory capabilities and the evidence that basic controls are increasingly being put in place by the states and facilities (see RCRA section 8002(n), which directs EPA to consider actions of state and other feder al agencies with a view to avoiding duplication of effort), EPA believes that subtitle D controls will provide sufficient clarity and incentive for states to close the remaining gaps in coverage, and for facilities to ensure that their wastes are managed p roperly [Footnote 74: Id. at 32,217.]. In addition to the preceding considerations, EPA based its 2000 decision, in part, on a desire to227

not reduce the beneficial reuse of CCRs, recognizing that a Subtitle C listing had the potential to negatively impact such use: Normally, concerns about stigma are not a deciding factor in EPA’s decisions under RCRA, given the central concern under the statute for protection of human health and the environment. However, given our conclusion that the subtitle D approach he re should be fully effective in protecting human health and the environment, and given the large and salutary role that beneficial reuse plays for this waste, concern over stigma is a factor supporting our decision today that [S]ubtitle C regulation is unw arranted in light of our decision to pursue a [S]ubtitle D approach [Footnote 75: Id.]. In sum, EPA’s prior evaluations of the hazards posed by CCR materials clearly demonstrate that Agency had concluded that these materials are not “typically or frequentl y” hazardous. Yet, EPA dismisses these prior determinations here without sufficient justification why these materials suddenly present a hazard to human health or the environment

Response: The Agency acknowledges and appreciates the comment. The commente r is referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under
subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08247

- 11 

### Organization 1 

### : Tucson Electric Power Company 

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



### Comment Excerpt Text:
THE SUBTITLE C OPTION PRESENTS INSURMOUNTABLE COMPLIANCE AND
DISPOSAL OBSTACLES FOR ELECTRIC UTILITIES

The Bevill Amendment has a primary purpose to ensure that any final regulation of CCRs not discourage development of coal as a primary domestic source of energy, avoid unnecessary inflationary impact on the use of coal from overly stringent CCRs regulations. In EPA? s 1993 final Regulatory Determination it was concluded that CCRs do not warrant hazardous waste regulation. In this determination EPA found that the Subtitle C regulatory system would result in excessive costs and unnecessary regulation as applied to CCRs management units. After acknowledging that CCRs rarely exhibit a hazardous waste characteristic and thus would not be subject to hazardous waste controls unless they were listed as a hazardous waste, EPA emphasized that the listing approach would be inappr opriate and excessive to protect human health and the environment. EPA?s 1999 Report to Congress, discussed that Subtitle C is inappropriate since it would duplicate existing State requirements and would be in excess of requirements to protect human health and the environment. As mentioned earlier, CCRs rarely exhibit a hazardous waste characteristic and thus would not be subject to hazardous waste controls unless they were listed as a hazardous waste. For these reasons, TEP requests that the
current EPA Ad ministration adhere to the findings of the 1993 final Regulatory Determination and the 1999 Report to Congress. If EPA feels that it cannot follow its prior determinations then228

it should provide explanation as to why it is reversing its previous determinat ions, and the explanation should provide all pertinent scientific information as to why it is changing its position from its final Regulatory determinations.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Uni t IV of today’s preamble for a discussion on our decision to regulate CCR under
subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08255

- 2 

### Organization 1 

### : LG&E and KU Energy LLC 

### Commenter 1 : Robert J. Ehrler on behalf of Dorothy E. O'Brien Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: III.Regulation of Coal Combustion Residuals under Subtitle C of RCRA is Improp er and
Unwarranted.

The Bevill Amendment to RCRA provides that CCRs shall not be regulated under Subtitle C until and unless EPA has submitted a comprehensive study to Congress assessing the environmental risks, if any, posed by CCRs and made a final reg ulatory determination in favor of Subtitle C regulation. 42 U.S.C. Section 6921(b)(3). The process specified in the statute reflects Congressional intent that EPA should avoid any regulatory actions that unduly impede the use of
coal. This concern is of cr itical importance for a state like Kentucky which relies on coal

- fired generation for more than 92% of its electricity. EPA undertook the requisite studies and submitted reports to Congress in 1988 (for certain large volume CCRs) and 1999 (for the
remainin g CCRs). In both reports, EPA concluded that Subtitle C regulation of CCRs was inappropriate; EPA issued corresponding regulatory determinations in 1993 and 2000 holding that Subtitle C regulation of CCRs was unwarranted. In the present situation, EPA is p roposing a Subtitle C regulatory option that would reverse EPA’s previous final regulatory determinations, despite the lack of any authority under RCRA for regulatory “do

- overs,” and without following the statutorily prescribed process for making a regulat ory determination. Not only has EPA failed to provide a reasoned explanation for reversing its previous regulatory determinations that Subtitle C regulation was inappropriate, but it also concedes that the environmental protection
measures under the Subtit le C and Subtitle D options outlined in the Proposed Rule are virtually identical, thus contravening the statutory directive that EPA not unnecessarily impede the use of coal through Subtitle C regulation. EPA’s rationale for the Subtitle C option rests on the flawed logic that the approach will increase beneficial reuse (see specific comments in section V below) and the cost estimates in EPA’s Regulatory Impact Analysis are flawed on similar grounds. In considering the listing of CCRs as a hazardous waste, EPA has used flawed methodologies that do not reflect the low risks posed by CCRs. See Kentucky Comments, pp. 2

- 3. The Electric
Power Research Institute and others have conducted extensive research that demonstrates the

non

- hazardous nature of CCRs. EPA’s recent conclusions are directly contradicted by the findings in its previous reports to Congress and regulatory determinations. In summary, the229

Subtitle C option proposed by EPA must be rejected as arbitrary and capricious, inconsistent
with the authorit y granted to EPA under RCRA, and in violation of applicable law.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08270

- 4 

### Organization 1 

### : Cliffs Natural Resources Inc. (Cliffs) 

### Commenter 1 : David Z. Skolasinski Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 3.1.2 2.1.1 

### Comment Excerpt Text: EPA's 1993 And 2000 Bevill Determinations Regarding CCRs

On August 9, 1993 , EPA published is Regulatory Determination for the first category of CCR wastes (58 Fed. Reg. 42,466) and determined that regulation under Subtitle C ofRCRA for these wastes was not wal1'anted. On May 22, 2000, EPA published its Regulatory Detelmination for the remaining CCRs and concluded that the remaining wastes were largely identical to the high

volume monofilled wastes, which remained exempt based on the 1993 Regulatory Detelmination. The high volume wastes simply dominate the waste cha racteristics even when co

managed with other wastes, and thus, the May 2000 Regulatory Determination addressed not only the remaining wastes, but effectively reopened the decision on CCRs that went to monofills. While some risks were aclmowledged to be ass ociated with these wastes, EPA fmiher concluded that significant improvements were being made in waste management practices due to increasing state oversight. On this basis, EPA chose to retain the Bevill exemption for CCRs, and the wastes would be regulat ed under Subtitle D of RCRA as solid wastes.

The Bevill Amendment to the Clean Air Act established a one

- time special process for making Bevill regulatory determinations for large volume, low toxicity wastes such as CCRs, and the

one

- time determination i s well founded in case law (Solite Corp. v. EPA). In addition, a statutory

- mandated Bevill process must be followed before a Bevill exemption determination can be reversed. To reverse a Bevill exemption determination for a waste EPA must: 1) study the

wast e pursuant to eight study factors, 2) submit a repOli to Congress, 3) conduct public hearings and provide an opportunity for comment on the report, and 4) if EPA determines that a change in the Bevill exemption for the waste is warranted, then it must enga ge in a notice and comment regulatory procedure to promulgate the regulations. EPA has not implemented this procedure since the 1993 and 2000 determinations. Therefore, at this time EPA cannot legally reverse its 1993 and 2000 Regulatory Determinations for CCRs and pursue a Subtitle C hazardous waste designation for CCRs. For these reasons Cliffs urges EPA to abandon its consideration of a Subtitle C determination for CCRs in this rulemaking.

Response: The Agency acknowledges and appreciates the comment. The commenter is230

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under

subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08418

- 3 

### Organization 1 

### : Commenter 1 : Annely Noble Commenter Type: Private Citizen
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text:

The EPA declared coal combustion residuals to be non

- hazardous in both 1993 and again in 2000; why is EPA revisiting th is decision in 2010 and considering reclassifying CCRs as
hazardous waste? This does not make sense!

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08840

- 11 

### Organization 1 

### : Electric Power Generation Association 

### Commenter 1 : Douglas L. Biden Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: IV. EPGA Endorses the Subtitle D Option

As discussed previously, EPGA believes that regulation of CCRs under RCRA Subtitle C is inappropriate and inconsistent with E PA's previous findings that CCRs do not warrant regulation as hazardous wastes. We believe that the second option provided in this proposed rulemaking, regulation of CCRs destined for disposal under RCRA Subtitle D, is the more appropriate regulatory metho d, and is consistent with EPA's rulemaking record. EPGA does have some concerns with the proposed Subtitle D option, which we will explain in detail below.

A. Appropriateness of Subtitle D

EPA was directed by Congress under the Solid Waste Disposal Act t o conduct a comprehensive study of CCRs to determine the environmental risks, if any, that these materials posed, and report back with their findings. Until such time that the study was complete, these materials were subject to regulation under applicable federal and state disposal provisions, in lieu of RCRA
Subtitle C.231

EPA soon realized that the magnitude of such a study was so large that it needed to divide the study into two phases in order to meet the schedule mandated by Congress. The initial phase

a ddressed the four large

- volume CCRs generated by coal

- fired electric generators, which included fly ash, bottom ash, boiler slag and flue gas emission control wastes. The second phase then covered the remaining CCRs generated by electric utilities and non

- utilities. This study phase would also include the four large

- volume CCRs when co

- disposed with these other remaining CCRs.

On March 8,1988, EPA reported to Congress, under the first phase of the study, that "EPA does not intend to regulate under [RCRA] S ubtitle C fly ash, bottom ash, boiler slag, and flue gas desulfurization wastes." 1988 Report to Congress at ES

- 6 (emphasis added).

On August 9, 1993, EPA published its initial final Regulatory Determination for CCRs, an additional mandated requirement fr om Congress. EPA concluded that RCRA Subtitle C regulation of the four large

- volume CCRs

- fly ash, bottom ash, boiler slag, and flue gas
desulfurization waste

- was not warranted. 58 Fed. Reg. 42466.

In March of 1999, EPA provided its Report to Congress on the remaining wastes studied under the second phase of the Congressionally mandated study. In this second report, EPA reiterated its earlier findings "that [RCRA] Subtitle C is inappropriate to address any problems associated with disposal of these wast es and that the continued use of site and region specific approaches by the states is more appropriate for addressing the limited human health and environmental risks that may be associated with disposal of these wastes." 1999 Report to Congress at 3

- 5 (em phasis added).

Finally, on May 22, 2000, EPA completed its Congressionally

- mandated statutorial requirements with its final Regulatory Determination for all remaining fossil fuel combustion wastes, including CCRs managed with certain low

- volume wastes. 65 Fed. Reg. 32214. In this final Determination, EPA again concluded, consistent with its previous findings and with its second Report to Congress, that CCRs and other fossil fuel combustion wastes did not warrant regulation under RCRA's Subtitle C hazardous waste program. EPA further concluded that development of national non

- hazardous waste regulations under RCRA Subtitle D is the appropriate disposal method for CCRs disposed in landfills and surface impoundments. Id.

Thus, it is obvious to EPGA that the s econd option provided in this current proposed rulemaking, regulation of CCRs destined for disposal under RCRA Subtitle D, is consistent with the rulemaking record, and is the only logical and appropriate regulatory method

Response: The Agency acknowledge s and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08844

- 9 

### Organization 1 

### : National Mining Association (NMA) 

### Commenter 1 : Tawny A. Bridgeford Commenter Type: Trade Association232

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 2.1.6 

### Comment Excerpt Text:

II. EPA'S REEXAMINATION OF THE BEVILL STATUS OF WASTES FROM THE
COMBUSTION OF FOSSIL FUELS

A. EPA Lacks the Authority to Reverse its 1993 and 2000 Bevill Regulatory Determi nations Regarding CCRs

EPA proposes two alternative regulatory approaches for the regulation of CCRs. The so

- called Subtitle C option would require EPA to reverse its prior August 1993 and May 2000 Regulatory
Determinations for CCRs. It is clear from RCRA , relevant case law, and EPA's prior positions in Bevill cases that EPA lacks the authority to reverse its August 1993 and May 2000 Bevill Regulatory Determinations regarding CCRs.

1. The Bevill Amendment Establishes a One

- Time Special Process For Making Bevill Regulatory Determinations

Congress enacted RCRA in 1976. Subtitle C of RCRA, 42 U.S.C. §§ 6921

- 6931, generally established a "cradle to grave" management scheme governing the generation, transportation, treatment, storage and disposal of the hazard ous wastes that would be subject to this stringent RCRA Subtitle C program.

On December 18, 1978, EPA proposed regulations identifying hazardous waste under RCRA Subtitle C. 43 Fed. Reg. 58,946 (Dec. 18, 1978). EPA proposed to regulate wastes from fossil fuel combustion, including CCRs, as well as certain other wastes, as "special wastes." 43 Fed. Reg. at 59,015. The EPA 1978 proposal explained that special wastes would be subject to fewer regulatory requirements because they were generated in "very large volumes," "posed relatively low" risks, and "were not amendable [sic] to the control techniques" proposed for hazardous waste treatment, storage and disposal. 43 Fed. Reg. at 58,992.

EPA abandoned the special waste concept, however, when the agency promul gated final hazardous waste regulations in 1980. 45 Fed. Reg. 33,084 (May 19, 1980). Thus, EPA's final rule, which was scheduled to take effect on November 19, 1980, would have treated CCRs as any other waste, subject to the full requirements of the final RCRA Subtitle C regulations.

Recognizing the absurdity of regulating CCRs and other special wastes in such an inflexible, onerous manner, Congress stepped in before the effective date of the final Subtitle C regulations and provided relief in October 1980 with the Bevill Amendment. See 42 U.S.C. §§ 6921(b)(3)(A), (c)6982(n). As a counterpoint to EPA's prior actions described above, the Bevill Amendment established a special process which EPA was required to follow before CCRs and the other special wastes c ould be regulated as hazardous wastes under Subtitle C of RCRA. See also, Environmental Defense Fund v. EPA, 852 F.2d 1309, 1314 (D.C. Cir. 1988) (EDF) ("Indeed, our reading of the statute and legislative history strongly suggests that Congress233

designed th e Bevill Amendment to break with the previous approach to regulation of hazardous industrial wastes.").

First, the Bevill Amendment established a temporary exemption from regulation under Subtitle C, until the completion of the study and submittal of the report described below. 42 U.S.C. § 6921(b)(3)(A). Congress directed EPA to conduct a "detailed and comprehensive study" on the adverse effects on human health and the environment of CCRs and other special wastes. 42 U.S.c. § 6982(n). In contrast to the ma nner in which EPA otherwise was going to decide how to determine if wastes were hazardous and subject to Subtitle C under the regulations that were to become effective on November 19, 1980, Congress expressly directed that the Bevill study include an analy sis of:

1) the source and volumes of CCRs generated per year;

2) present disposal and utilization practices;

3) potential danger, if any, to human health and the environment from the disposal and reuse of such materials;

4) documented cases in which da nger to human health or the environment from surface runoff or leachate has been proved;

5) alternatives to current disposal methods;

6) the costs of such alternatives;

7) the impact of those alternatives on the use of coal and other material resources; and

8) the current and potential utilization of such materials.

Third, Congress directed that EPA publish a report on such study, which was to include "appropriate findings," not later than 24 months after October 21, 1980. [d. The Bevill Report

was to be submitted to the Committee on Environment and Public Works of the United States Senate and the Committee on Energy and Commerce of the United States House of Representatives. [d.

Fourth, the Bevill Amendment further stipulated that within six months af ter the Report to Congress, EPA, after public hearings and the opportunity for comment, had to determine whether to promulgate regulations under Subtitle C for CCRs, or determine that such regulations were unwarranted. 42 U.S.C. § 6921(b)(3)(C). Finally, i f EPA determined that such regulations were warranted, EPA could then engage in notice and comment rulemaking to promulgate the Subtitle C regulations. See American Portland Cement Alliance v. EPA, 101 F.3d 772, 775 (D.C. Cir. 1996) ("Section 3001(b)(3)(C) provides that the product of the notice and comment process [on the Report to Congress] will be a determination of whether regulation is warranted in the future, not regulations themselves.")234

EPA failed to meet the Bevill Amendment's statutory deadline o f October 21, 1980, for publication of a Report to Congress on fossil fuel combustion wastes. In Gearhart v. Reilly, No.
91

- 2435 (D. D.C. June 30, 1992), EPA entered into a Consent Decree which divided fossil fuel combustion wastes into two categories, and agreed to follow the Bevill process separately for the two categories. EPA had actually published its First Report to Congress on fossil fuel combustion wastes from coal fired utilities on March 8, 1988. 53 Fed. Reg. 9976 (Mar. 28, 1988). On August 9, 199 3, EPA issued a regulatory determination that regulation of four large volume fossil fuel combustion wastes from coal fired utilities (fly ash, bottom ash, boiler slag, and flue gas desulfurization waste) as hazardous is "unwarranted" under RCRA Subtitle C . 58 Fed. Reg. 42,466.

In the second phase of the Bevill utility industry process, EPA addressed issues of co

management, ash derived from co

- burning of coal from non

- hazardous solid waste, ash derived from clean coal combustion, and combustion residues f rom burning oil and natural gas. EPA submitted its second utility Report to Congress on March 31, 1999. 64 Fed. Reg. 22,820 (April 28, 1999). On April 25, 2000, EPA issued its Phase II Regulatory Determination. 65 Fed. Reg. 32,214 (May 22, 2000). EPA concl uded in the Phase II Bevill Regulatory Determination that hazardous waste regulation under Subtitle C for the remaining fossil fuel combustion wastes "[was] not warranted." 65 Fed. Reg. at 32,215. EPA reserved the right to revise this
determination. See Id . at 32,215 & 32,218.

An analysis of the Bevill Amendment reveals that the above

- described special Bevill process established by Congress provided for a one

- time evaluation of CCRs and the other special wastes that cannot be subsequently reversed. First, the Bevill Amendment by its terms calls for a "study" and a "report." 42 U.S.C. §§ 6982(n). The use of the singular, as well as the statutory context, means that Congress deliberately established a one

- time study and one

- time Report to Congress obligation. Similarly, Congress called for a one

- time regulatory determination when it stated that "not later than six months after the date of submission of the applicable study" EPA should "either determine to promulgate regulations ... or determine that such regul ations are unwarranted." 42 U.S.C. § 6921(b)(3)(C).

Second, Congress made it clear it was establishing a one

- time study, report and regulatory determination obligation when it required that the report and study be completed by a date certain, i.e., Octobe r 21, 1980. 42 U.S.C. § 6982(n). Finally, the Bevill Amendment established a temporary exemption from RCRA Subtitle C regulation for the special wastes, an approach
consistent with a one

- time study, report, and regulatory determination. 42 U.S.C. § 6921(b) (3)(A). If Congress had intended to extend the Bevill process thirty years beyond the 1980 date Congress established for completion of the Bevill study and report, Congress would have done so explicitly. That Congress did not do so, further confirms that i t intended that the Bevill process consist of a one

- time report, study, and regulatory determination for CCRs.

Accordingly, with the issuance of the 2000 Regulatory Determination, the Bevill process for fossil fuel combustion wastes, including CCRs, was c ompleted. For all the above reasons, the
Bevill Amendment established a one

- time study, report, and regulatory determination for CCRs. Accordingly, EPA lacks the authority to reverse its 1993 and 2000 Regulatory Determinations. Any attempt by EPA to do so in the final rule would be unlawful235

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08855

- 1 

### Organization 1 

### : Colstrip Energy Limited Partnership (CELP) 

### Commenter 1 : R. Lee Roberts Commenter Type: Electric Utility Facility
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Se ctions: 2.1.3 

### Comment Excerpt Text: EPA Once Recognized One Size Does Not Fit All Landfills EPA's two proposed rule

- makings (both RCRA subtitle Cand subtitle D) each appear to try to impose one uniform set of requirements upon all entities which would be subject to those rules. Such an approach in CELP's opinion does not reflect reality. Aside fr om the obvious difference between sludge impoundments and dry ash landfills, there are material and significant differences between ash from Pulverized Coal Units ("PCUs") and ash from Fluidized Bed Combustors ("FBCs"). As EPA in its 1993 Final Regulatory Determination on Four Large

Volume Wastes from the Combustion of Coal by Electric Utility Power Plants (58 FR No. 151) observed at page 42,469: "Finally, for the purposes of this action, large

- volume wastes from coal

- fired electric utilities do
not includ e wastes generated from fluidized bed combustion (FBC) boiler units. FBC is a relatively new combustion technology that allows for the removal of sulfur without an end

- of

pipe scrubber. The wastes generated by this technology were not studied in the RTC, a nd only limited information regarding their characteristics and management has been collected to date. The information that is available has not provided EPA with enough evidence to conclude that waste generated from FBC units is substantially similar to c onventional boiler wastes. Some sources maintain that FBC units that burn solely coal as a fossil

- fuel source generate fly ash and spent bed material that is substantially different from conventional boiler wastes. n5 This is because in FBC, coal is burned in the presence of limestone. The differences in the FBC wastes are defined by a presence of sulfur compounds and high amounts of residual alkalinity...."

EPA also concluded that further analysis of FBC waste was needed in order to reach conclusions

as t o the character of those wastes. "The information does indicate that the use of CFB technology in the electric utility industry may be increasing. Because of the current lack of data, the potential ofthe co

- firing of limestone to have a significant effect on the characteristics of the wastes produced, and the potential for increased utilization of the technology, the Agency has decided to defer a decision on these wastes until further information from the growing number of facilities can be examined.
There fore, the Agency considers these wastes "remaining wastes," which are outside the scope oftoday's regulatory determination."

EPA in its 2000 Regulatory Determination on Wastes From the Combustion of Fossil Fuels; Final Rule (FR 65, p. 32,214) once again determined that regulation pursuant to subtitle CRCRA236

was not warranted for FBC wastes: "In today's action, we are determining that regulation of fossil fuel combustion (FFC) wastes under subtitle C of the Resource Conservation and Recovery Act (RCRA) is not warranted. This determination covers the following wastes: ***

- Coal combustion wastes generated at facilities with fluidized bed combustion technology;"

but decided to establish national regulations under subtitle D RCRA
"While these wastes remain exempt from subtitle C, we have further decided to establish national regulations under subtitle D of RCRA (RCRA sections 1008(a) and 4004(a)) for coal combustion wastes that are disposed in landfills or surface impoundments or uses to fill surface or
und erground mines...."

EPA observed at page 32,216 that site

- specific characteristics should be considered when determining the applicable level of regulation for a specific facility: "We note, however, that some waste management units may not warrant line rs and/or groundwater monitoring, depending on site

- specific characteristics."

Unfortunately, in its current proposals EPA does not address the further analysis and study of the differences between PCU ash and FBC ash it once deemed appropriate as discus sed above, does not differentiate between them, and does not recognize that site

- specific characteristics can materially alter requirements. CELP strongly encourages the EPA to complete the analysis on the
differences between PCU ash and FBC ash before fin alizing the CCR rule. Completing this analysis is necessary before including FBC ash in this rule because it may pose significantly
lower risks to the environment.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09281

- 15 

### Organization 1 

### : Exelon Power 

### Commenter 1 : Victoria K. Will Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: c. Regulation under Subtitle D is consistent with applicable law and the rulemaking record.

As required under the Bev ill Amendment, EPA submitted two prior reports to Congress addressing the appropriate regulatory regime for CCR. See 42 U.S.C. § 6982(n). These reports, submitted in 1988 and 1999, preceded two previous Regulatory Determinations, issued in 1993
and 2000. U nder these Regulatory Determinations, EPA concluded that regulation under Subtitle C of RCRA is inappropriate for CCR, and that Subtitle D can address the environmental and public health and safety concerns associated with CCR disposal. Exelon believes tha t EPA237

should implement a regulatory paradigm under Subtitle D, as that approach is consistent with the procedural requirements imposed by the Bevill Amendment, the prior Regulatory Determinations and the rulemaking record. These factors may help the Agency stave off legal challenges as to the implementation process for final CCR disposal rules. A brief summary of key findings in the Regulatory Determinations, which were preceded by supporting Reports to Congress, and highlights from industry studies and com ments from other regulators follows.

On August 9, 1993, EPA’s review of the proper regulatory regime for disposal of fly ash, bottom ash, boiler slag and flue gas emissions control waste from the combustion of coal by electric
utilities concluded with th e determination that “Subtitle C is inappropriate to address the problems associated with these wastes and that the site or region specific state approach is appropriate for addressing the limited human health and environmental risks involved with the disp osal of FFC wastes.” 58 Fed. Reg. 42466, 42477 (Aug. 9, 1993). In reaching this decision, EPA acknowledged that “coal combustion wastes rarely exceed RCRA characteristics for hazardous waste” and “[a] Subtitle C system would require coal combustion units t o obtain a Subtitle C permit (which would unnecessarily duplicate existing state requirements) and would establish a series of waste design and operating requirements for these wastes, which would generally be in excess of requirements to protect human hea lth and the environment.” Id. EPA did, however, indicate that it would continue to consider these wastes during its ongoing
assessment of industrial non

- hazardous wastes under Subtitle D. Id.

When EPA issued a subsequent Regulatory Determination on May 2 2, 2000, addressing “remaining [coal combustion] wastes,” it determined that “national regulations under subtitle D of RCRA are warranted for coal combustion wastes when they are disposed in landfills or surface impoundments.” 65 Fed. Reg. 32214 (May 22, 2 000). EPA also concluded that a Subtitle D approach “should be fully protective of human health and the environment.” 65 Fed. Reg. at 32233. Moreover, the record indicated that “the structure and the sanctions associated with a Subtitle D approach” were su fficient compliance incentives. Id. at 32217. EPA was also concerned about regulating CCR disposal in a manner that could adversely impact the beneficial use of CCR, and acknowledged that concern was a factor “supporting our decision today that
subtitle C regulation is unwarranted in light of our decision to pursue a subtitle D approach.”

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preamble for a discussion on our decision to regulate CC R under
subtitle D of RCRA. The commenter is also referred to the beneficial use requirements that can
be found in Unit VI of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09358

- 2 

### 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:
Other Sections: 2.1.3238



### Comment Excerpt Text: 2. The rulemaking r ecord supports continued management of CCRs as non

- hazardous waste under RCRA Subtitle D as reflected in the two Final Reports to Congress prepared by EPA per direction from the Bevill Amendment to RCRA and the subsequent two Regulatory
Determinations issu ed by EPA. For approximately the last 30 years, EPA has consistently found the Subtitle D approach, along with state involvement, to be the appropriate regulatory course for CCRs. EPA has not demonstrated that regulation outside of this regulatory framewor k is appropriate. In fact, EPA indicates by its own actions that it supports a Subtitle D approach for the Kingston, Tennessee ash cleanup effort. As part of the approved cleanup plan, ash is being disposed as a non

- hazardous waste at a Subtitle D landfill

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09358

- 8 

### 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:
Other Sections: 2.1.3 

### Comment Excerpt Text: WPL strongly opposes regulation of CCR under RCRA Subtitle C. 1. EPA has not demonstrated that regulation under RCRA Subtitle C is required for protection of the environment and human health. Following the passage of the Bevill Amendment to RCRA, EPA initiated studies of CCRs for more than 20 years which resulted in EPA Regulatory Determinations issued in 1993 and 2000. Both determinations reflected findings that CCRs did not warrant regulation under RCRA Subtitle C. No additional determinations have been issued by EPA; hence, the proposal option to regulate CCRs under RCRA Subtitle C is inconsistent
with EPA's own determinations. Because coal is a national p rimary source of energy, Congress made clear in the Bevill Amendment to RCRA of their intent to be consulted in any EPA actions for CCR regulation, as well as directing that input from other federal agencies, states, and the general public should be sought . The EPA Subtitle C option reflects total disregard of the nearly unanimous views of federal and state agencies that Subtitle C regulation is not warranted for CCRs. Included in this list of agencies is the WDNR which testified at the EPA public hearing i n Chicago on this rulemaking. The WDNR CCR management program is nationally recognized and currently includes many of the provisions proposed under the RCRA Subtitle D option. Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09530

- 9 

### Organization 1 

### : PSEG Power LLC and Public Service Electric and Gas239



### Commenter 1 : Eric B. Svenson Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: X. The Subtitle D Option is Consistent with the Rulemaking

The continuance of a Subtitle D regulatory program is consistent with the two EPA Reports to Congress, and the two final Regulatory Det erminations EPA has issued pursuant to the Bevill Amendment, which determined CCRs do not warrant hazardous waste regulation under RCRA
Subtitle C.

Over the past 20 years EPA has consistently determined that a Subtitle D approach is the appropriate regul atory course for CCRs. In its CCR Regulatory Determination in 1993 and again in 2000, EPA concluded that the Subtitle D approach is most appropriate. EPA reaffirmed the appropriateness of Subtitle D option in the 2000 CCR Regulatory Determination, concludi ng that “Subtitle D regulations are the most appropriate mechanism......" [65 Fed. Reg. 32221] Furthermore, new production CCR’s rarely exhibit a hazardous waste characteristic, and as such do not warrant regulation as a listed hazardous waste under Subtitle C.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09532

- 2 

### Organization 1 

### : Natural Resource Partners LP 

### Commenter 1 : Nick Carter Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: NRP strongly opposes EP A's proposal to reverse the 1993 and 2000 Bevill regulatory determinations, which correctly found that CCRs should be regulated as non

- hazardous wastes. EPA accurately concluded that Subtitle C hazardous waste designation was not appropriate for
CCRs becau se it would result in unnecessarily duplicating existing state requirements and impose controls on CCRs "which would generally be in excess of requirements to protect human health and the environment." 58 Fed. Reg. 42466, 42477 (Aug. 9, 1993). A reversal o f these determinations would unnecessarily jeopardize the beneficial re

- use industry and the jobs its supports, in addition to causing more, not less of the CCR's to be landfilled. In EPA's 1999 Report to Congress, it emphasized the difficulties associated with Subtitle C classification of
CCRs:240

The agency has tentatively concluded that the co

- managed wastes generated at a coal

- fired utilities, including petroleum coke combustion wastes as well as wastes from other fuels co

- fired with coal, generally prese nt a low inherent toxicity, are seldom characteristically hazardous, and generally do not present a risk to human health and the environment...lf these wastes were listed as hazardous, and therefore regulated under Subtitle C, coal combustion units would b e required to obtain a Subtitle C permit, which would unnecessarily duplicate existing State requirements, and would establish a series of waste unit designation operating requirements for these wastes that would most often be in excess of requirements to protect human health and the environment. US EPA, Report to Congress on Wastes from the Combustion of Fossil Fuels, Vol. 2,3

- 73 (1999).

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09712

- 8 

### Organization 1 

### : Basin Electric Power Cooperative (BEPC) 

### Commenter 1 : Claire M. Olson Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: Background of the Bevill Amendment In 1980, Congress amended ("RCRA" ) with the passage of the Bevill Amendmentto ensure that EPAwould not inappropriately subject CCRs to hazardous waste regulation. The amendment was intended to avoid the excessive costs associated with Subtitle C regulation of CCRs and to promote their ben eficial use. The Bevill Amendment addressed these concerns by suspending EPA's authority to regulate CCRs under Subtitle C of RCRA unless and until the Agency completed a study and reported to Congress on whether such regulation was warranted. With complet ion of the study and submission of the corresponding Report to Congress, the Bevill Amendment required EPA to make a final regulatory determination regarding whether CCRs should be regulated under Subtitle C. The Bevill Amendment required the Agency to bas e this final regulatory determination "on information developed or accumulated pursuant to [the RCRA 8002] study, public hearings, and comment. . . ." RCRA 8002(n), 42 U.S.C . 6982(n). In short, EPA could only reach the decision to regulate CCRs under Subt itle Cafter following a statutorily

- prescribed series of steps that involved congressional oversight marked by EPA's submission of reports to Congress that would inform the relevant congressional committees of jurisdiction of the Agency's preliminary reco mmendations. Implementation of the Bevill Amendment EPA submitted its first Report to Congress on March 8, 1988, concluding that fly ash, bottom ash, boiler slag, and flue gasemission control waste generally do not exhibit hazardous
characteristics under RCRA. Accordingly, EPAstated that it did not intend to regulate those four241

large

- volume coal combustion waste streams. The initial report went on to encourage the
utilization of coal combustion wastes to the extent that such utilization could be done in a n environmentally safe manner. Six months later, EPA reiterated in its first Regulatory Determination the conclusion that hazardous waste regulation was not warranted for those four large

- volume coal combustion waste streams. 58 Fed. Reg. at 42477. The sec ond Report to Congress, submitted in March 1999, again concluded that Subtitle C is inappropriate to address any problems associated with disposal of several other fossil fuel combustion wastes, including CCRs managed with certain low

- volume wastes. The re port also stated that "the continued use of site and region specific approaches by the states is more appropriate for addressing the limited human health and environmental risks that may be associated with disposal of these wastes." In May 2000, EPA comple ted the Bevill Amendment's statutorily

- prescribed assessment and reporting process when it issued its final Regulatory Determination for all remaining fossil fuel combustion wastes, including CCRs managed with certain low

- volume wastes. See 65 Fed. Reg.

at 32214. Echoing its first Regulatory Determination, EPA concluded that CCRs and other fossil fuel combustion wastes did not warrant regulation under RCRA's Subtitle C hazardous waste program. Instead, EPA determined that regulation as a non

- hazardous solid waste under Subtitle
D of RCRA would be appropriate when CCRs are disposed of in landfills or surface impoundments. Id.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09728

- 2 

### Organization 1 

### : Intermountain Power Service Corporation (IPSC) 

### Commenter 1 : J on A. Finlinson Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: 2. The EPA does not have sufficient reason or basis to reverse its August 1993 and May 2000 Bevill Regulatory Determinations.

We believe the EPA has insufficient reason to reverse prior determinations concerning CCR management and disposal. The EPA spent significant effort in prior undertakings to review the CCR management issue and properly rejected the RCRA Subtitle C option. The arguments presented in the current proposal still do not meet the standard for regulating CCR as hazardous or special wastes.

The EPA states that it questions whether a natural migration to Subtitle D

- like disposal practices has occurred as expected in the 2000 determination. If the EPA finds this is the case, the obvious next step would be to implement a CCR

- specific Subtitle D program much like the current proposed option, and not make the over

- reaching jump to Subtitle C management practices. IPSC believes that given the tremendous volume of CCR from power generation, one would242

expect to see more actual cases of CCR specific impacts to human health and the environment than actually found (based on EPA's assumption of CCR potential for impact). Since such is not the case, Subtitle C is an extreme, costly, inefficient, and legally questionable approach to bring CCR disposal pra ctices to a higher standard.

The EPA states that one indicator for the needed application of a Subtitle C program is due to damage cases it has "found" since the 2000 determination. Although any impact from CCR is troublesome, IPSC believes that the case s to which the EPA is relying for this determination are not in fact proven damage cases as required according to the standards under RCRA. We believe the EPA has improperly utilized criteria to bring cases under the umbrella of proven damage
when in fact they are not. Given a century of CCR disposal, the low number of actual proven cases does not warrant a rise to extreme over regulation under Subtitle C.

Additionally, we believe the EPA has not followed the requirements set out by Congress to

reverse a Bevill Amendment determination. The 2000 determination was final, and the language in the law does not explore reopening a determination. Further, when the EPA does make a determination, it must make a report to Congress prior to any regulatory action. It appears that the EPA may be on legally thin ground.

IPSC is concerned that given the previous history of EPA determinations, coupled with the EPA's current efforts to stretch reasoning for Subtitle C regulation of CCR, litigation against
such action woul d be very likely, further delaying effective and quality management of CCR's where it is needed. On it's face, the proposal for a legally indefensible Subtitle C appears to be politically motivated, mostly driven by the current administration's extremely s trong animus against coal. The unfortunate tragedy at Kingston only fueled this animosity. If such politics were proven out, it would make the EPA's regulation of CCR under Subtitle C appear arbitrary and capricious.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09728

- 24 

### 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: 2.1.3 4.5.1 

### Comment Excerpt Text:

IPSC recommends that EPA :

• Leave the 1993 and 2000 determinations in place;243

• Let the Bevill Amendment stand;

• Adopt the D Prime option as follows:

~ Allow existing impoundments to operate as described in the proposed rule, especially where States can have a protective program in place, and site

- specific conditions warrant it;

~ Where States have comparable Subtitle D programs: • Allow existing State landfill permitting regulations to have precedence, • Allow existing State groundwater protection standards to have pr ecedence, • Allow existing State groundwater monitoring standards to have precedence, Allow existing State self reporting requirements to have precedence over company web based documentation;

~ Allow States to adopt best practices under Subtitle D for site specific criteria;

~ Overlay and institute Subtitle D in areas lacking at the State level.

~ Let similar State financial assurance programs operate in place of CERCLA.

Response: The Agency acknowledges and appreciates the comment. The commenter i s referred to the preamble discussion for this final rule to see how EPA has addressed each of your statements regarding what the rule should or should not contain.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09750

- 6 

### Organization 1 

### : American Coal Council (ACC) 

### Commenter 1 : Janet Gellici Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.2 2.1.3 

### Comment Excerpt Text: A hazardous designation is not supported by three decades of EPA study and formal determinations based on strong scientific research. Previous regulatory determinations in 1993 and 2000 clearly document that CCPs should continue to be exempt from regulatio n as a hazardous waste under RCRA. In its 1993 Report to Congress, EPA stated it “encourages the utilization of coal combustion wastes as one method for reducing the amount of these wastes requiring disposal and supported voluntary efforts by industry to i nvestigate new possibilities for utilizing coal combustion wastes.”

On May 22, 2000, EPA issued a Final Regulatory Determination stating that fossil fuel combustion wastes “do not warrant regulation under RCRA Subtitle C,” thereby retaining the244

original Bevill exemption under RCRA. EPA further determined that there will be no regulation for CCRs when beneficially used and that EPA does “not wish to place any unnecessary barriers
on beneficial use.”

The ACC supports these prior EPA determinations.

Respon se: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09885

- 17 

### Organization 1 

### : Progress Energy, Inc. 

### Commenter 1 : Caroline Choi Commenter Type: Electric Utility Company
Classification: Substantive
Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: The rulemaking record supports regulation of CCRs under Subtitle D

It is important to emphasize that the development of Subtitle D non

- hazardous waste reg ulations for CCRs is fully consistent with the rulemaking record. In fact, it is the only lawful option available to the Agency. The development of Subtitle D regulations would be the appropriate outgrowth of EPA’s two Reports to Congress and two Regulator y Determinations under the Bevill amendment declaring that CCRs do not warrant hazardous waste regulation under RCRA Subtitle C, but rather should remain primarily the province of state regulatory programs under RCRA Subtitle D. Throughout its 20

- year stu dy and issuance of the required Reports to Congress and final CCR Regulatory Determinations, EPA has consistently found that the Subtitle D approach, with active state involvement, was the appropriate regulatory course for CCRs. In its first CCR Regulatory Determination in 1993, EPA concluded that, because “the potential for damage from these wastes is most often determined by site

- or region

- specific factors,” the “current State approach to regulation” under RCRA Subtitle D is most appropriate.
EPA echoed this finding in its second Report to Congress in 1999, concluding once again “that [RCRA] Subtitle C is inappropriate to address any problems associated with disposal of these wastes and that the continued use of site and region specific approaches by the states [under RCRA Subtitle D] is more appropriate for addressing the limited human health and environmental risks that may be associated with disposal of these wastes.”

EPA reaffirmed the appropriateness of the Subtitle D option in its 2000 Regulatory
De termination, concluding that “the subtitle D regulations are the most appropriate mechanism for ensuring that [CCRs] disposed in landfills and surface impoundments are managed safely.” In addition to the fact that CCRs rarely exhibit a hazardous waste char acteristic, EPA explained that the decisive factors underlying its final determination that CCRs do not warrant regulation under RCRA’s Subtitle C hazardous waste regulations were:

• improving trends in present CCR disposal and utilization practices;245

• t he current and potential utilization of CCRs ( i.e. beneficial use); and

• Congress’ admonition in the Bevill Amendment against duplication of efforts by other federal and state agencies.

In concluding that Subtitle D was the appropriate regulatory path f orward, EPA also pointed to the record evidence as set forth in the 1999 Report to Congress that “the utility industry has made significant improvements in its waste management practices over recent years” and to similar record evidence that “state [CCR re gulatory] programs have, in fact, substantially improved over the last 15 years or so.” EPA found that “the ability for most states to impose specific regulatory controls for coal combustion wastes has increased almost three

- fold over the past 15 years.” E PA concluded 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.”

This positive trend has continued, with EPA and DOE finding in their jo int 2007 report of state CCR controls that “[t]he data and analyses documented in this report provide new information that appears to show improved management of CCWs in both landfills and surface impoundments.” Since the initiation of this rulemaking effo rt, the record support for the Subtitle D option has become even more compelling. Over the last year, the overwhelming majority of the states, the National Governors Association, municipal and local governments, ASTSWMO,
the Environmental Council of the St ates, over two dozen state environmental protection agencies and state departments of transpiration, federal agencies including the Department of Energy, a
bi

- partisan group of 165 members of Congress (including the majority of the House Energy and
Commerc e Committee), 45 U.S. Senators and many other third parties have expressed their support for regulation of CCRs as a non

- hazardous waste under RCRA Subtitle D. Given the breadth of federal agency, state, local and congressional support for the Subtitle D o ption, rejection of the Subtitle D option in favor of the Subtitle C approach would fly in the face of the Bevill amendment’s directive that any final regulatory program for CCRs take into account the views of other federal agencies and the states to ensur e a unified decision that “avoid[s] a duplication of effort.” As noted above, Representative Bevill repeatedly cautioned EPA that it was not to make a final regulatory determination for CCRs “in a vacuum,” but rather was to
consult and coordinate with othe r key agencies that have evaluated CCRs, including, the Departments of Energy, Interior and Agriculture, as well as other government agencies, to ensure a coordinated regulatory approach for CCRs consistent with the nation’s “commitment to develop a cohere nt and consistent policy toward the use of our coal and other energy resources.” These federal, state, municipal and local agencies have spoken and are virtually unanimous in their support of the Subtitle D approach.

In short, given the overwhelming views by the very agencies that Congress directed EPA to consult with in determining how to regulate CCRs under RCRA, combined with EPA’s own Reports to Congress and two final Regulatory Determinations rejecting the concept of regulating CCRs under RCRA’s hazar dous waste program, the Subtitle D option provides the only lawful regulatory approach for these materials under RCRA

Response: The Agency acknowledges and appreciates the comment.246



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09885

- 2 

### Organization 1 

### : Progress Energy, Inc. 

### Commenter 1 : Caroline Choi Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: EPA published its first final Regulator y Determination for CCRs on August 9, 1993. This final Regulatory Determination set forth EPA’s conclusion that RCRA Subtitle C regulation of the four large

- volume CCRs

– fly ash, bottom ash, boiler slag, and flue gas desulfurization waste

– was not warran ted. Specifically, the Agency concluded 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 control waste] because of the limited risks posed by the m and the existence of generally adequate State and Federal regulatory programs. The Agency also believes that the potential for damage from these wastes is most often determined by site

- or region

specific factors and that the current State approach to re gulation is thus appropriate. Therefore, the Agency will continue to exempt these wastes from regulation as hazardous wastes under RCRA Subtitle C .... EPA will consider these wastes during the Agency’s ongoing assessment
of industrial nonhazardous wastes un der RCRA Subtitle D.

EPA determined that the four large

- volume CCRs did not warrant Subtitle C hazardous waste controls, concluding that the inflexible Subtitle C hazardous waste framework was wholly inappropriate for CCRs. The agency stated that “it is u nlikely that Subtitle C would effectively address the problems associated with the four large

- volume fossil

- fuel combustion wastes [CCRs] without imposing unnecessary costs.” EPA found that the rigid nature of the Subtitle C regulatory system would result in excess costs and unnecessary regulation as applied to CCR management units:

A Subtitle C system would require coal combustion units to obtain a [RCRA] Subtitle C permit (which would unnecessarily duplicate existing State requirements) and would establi sh a series of waste unit design and operating requirements for these wastes, which would generally be in excess of requirements to protect human health and the environment. For example, if such wastes were placed in the Subtitle C universe, all ash dispos al units would be required to meet specific liner and monitoring requirements. Since [CCR] sites vary widely in terms of topographical, geological, climatological, and hydrological characteristics (e.g., depth to groundwater, annual rainfall, distance to d rinking water sources, soil type) and the wastes potential to leach into the groundwater and travel to exposure points is linked to such factors, it is more appropriate for individual States to have the flexibility necessary to tailor specific controls to the site or region specific risks posed by these wastes.

Following issuance of the 1993 Regulatory Determination, EPA began work on its second report247

to Congress on the remaining fossil fuel combustion wastes, including CCRs managed with
certain low

- volum e wastes. EPA issued its second Report to Congress in March 1999, reiterating “that [RCRA] Subtitle C is inappropriate to address any problems associated with disposal of these wastes and that the continued use of site and region specific approaches by the states is more appropriate for addressing the limited human health and environmental risks that may be associated with disposal of these wastes.” EPA also reiterated its belief that regulating CCRs under RCRA’s hazardous waste program would unnecessarily duplicate existing state requirements and would establish a series of waste unit design and operating requirements for these wastes that would most often be in excess of requirements to protect human health and the
environment.

EPA completed the statutori ly

- required Bevill amendment process in May 2000 when it issued its final Regulatory Determination for all remaining fossil fuel combustion wastes, including CCRs managed with certain low

- volume wastes. Based on record evidence, hearings and public

comment on the 1999 Report to Congress, EPA once again concluded that CCRs and other fossil fuel combustion wastes did not warrant regulation under RCRA’s Subtitle C hazardous waste program. EPA concluded instead that the development of national non

- hazardous sol id waste regulations under RCRA Subtitle D is appropriate when CCRs are disposed of in landfills or surface impoundments. In addition to the fact that CCRs rarely exhibit a hazardous waste characteristic, EPA explained that its final determination was base d on the improving trends in present CCR disposal and utilization practices, the current and potential utilization of CCRs ( i.e.

, beneficial use) and Congress’ admonition in the Bevill amendment against duplication of efforts by other federal and state age ncies. EPA pointed to the record evidence that the utility industry has made significant improvements in its waste management practices over recent years and to similar record evidence showing that “[CCR regulatory] programs have, in fact, substantially
im proved over the last 15 years or so.”

In fact, EPA found that the ability of most states to impose specific regulatory controls for coal
combustion wastes has increased almost three

- fold over the past 15 years. EPA concluded that with the exception of rel atively few states, the regulatory infrastructure is generally in place at the state level to ensure adequate management of these wastes. Thus, EPA concluded that “[w]e believe that subtitle D regulations are the most appropriate mechanism for ensuring tha t these wastes disposed in landfills and surface impoundments are managed safely.” Given existing state CCR regulatory capabilities and the evidence that basic controls are increasingly being put in by the state and facilities, EPA was mindful of Congress’ s directive in section 8002(n) that the agency, in reaching a final determination, consider “[the] action of state and other federal agencies with a view to avoiding duplication of effort.” Consistent with this statutory dictate,
EPA concluded that Subtitl e D controls will provide sufficient clarity and incentive for states to close the remaining gaps in coverage, and for facilities to ensure that their wastes are managed properly. Also critical to EPA’s final determination that CCRs do not warrant regulati on under Subtitle C was the Bevill amendment’s direction in RCRA section 8002(n) that any final decision take into account the current and potential utilization of such materials. In particular, EPA saw a potential downside to pursuing a Subtitle C approac h, citing the concerns expressed by commenters that subjecting any coal combustion wastes to a Subtitle C regime would place a significant stigma on these wastes, the most important effect being that it would adversely impact beneficial reuse. EPA acknowle dged the possibility that the Subtitle C approach could248

have unintended consequences and that the agency was particularly concerned about any adverse
effect on the beneficial reuse market for these wastes

. EPA concluded that, given its conclusion
that the Subtitle D approach should be fully effective in protecting human health and the environment, and given the large and salutary role that beneficial reuse plays for this waste, concern over stigma was a factor supporting the agency’s decision that Subtitle C regulation is unwarranted in light of the decision to pursue a Subtitle D approach.

After EPA issued its final 2000 Regulatory Determination, the agency continued to evaluate options for implementing Subtitle D non

- hazardous waste regulations for CCRs. As part of this process, in 2005 and 2006, EPA and the U.S. Department of Energy (DOE) jointly conducted a study of current and recent (1) management practices for CCR disposal by industry, (2) state regulatory requirements for CCR management and (3) imple mentation of state requirements by state authorities. This study examined landfills and surface impoundments that were permitted, built, or laterally expanded between January 1, 1994 and December 31, 2004 to determine what changes, if any, in CCR disposal management practices and state regulatory controls had occurred since the 1994 close of the administrative record for the Bevill Regulatory Determination and EPA’s 1999 Report to Congress.

In a report titled “Coal Combustion Waste Management at Landfills and Surface Impoundments,
1994

- 2004” (DOE/EPA Report), DOE and EPA found that, “[b]etween 1994 and 2004, the amount and quality of environmental controls used at CCW management units appear to have increased.” The DOE/EPA Report cited improvements in the m anagement of CCRs in new or expanded landfills and surface impoundments, including the use of liners and the monitoring of groundwater. EPA and DOE also examined whether state CCR regulatory controls had similarly improved and found that “[i]n eight areas of regulatory control reviewed for this report, more CCWs destined for landfills in the States reviewed had tightened regulatory controls than had relaxed controls between the times data were collected for the 1988 [Report to Congress] and for this report. ” Consistent with this continuing improvement in the administration of state CCR controls, EPA and DOE also found that the grants of variances from regulatory controls by state regulators had sound scientific support. Based on the above, the DOE/EPA Report concluded that “[t]he data and analyses documented in this report provide new information that appears to show improved management of CCWs in both landfills and surface impoundments.” The findings of the DOE/EPA Report are significant because they provide updated information supporting the conclusions in the final 2000 Regulatory Determination that Subtitle C regulation of CCRs is not warranted due, in part, to the significant and continuing improvements in CCR waste management practices and corresponding improvements in state CCR regulatory programs. Since completion of the DOE/EPA Report in 2007, several states have proposed and/or implemented further enhancements of their CCR controls

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09885

- 8 

### Organization 1 

### : Progress Energy, Inc. 

### Commenter 1 : Caroline Choi249

Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.6 

### Comment Excerpt Text: EPA does not justify a change in position that would use Subtitle C.

In addition to the above, EPA’s selection of the Subtitle C option would be arbitrary and capricious because the agency has provided no explanation as to why its earlier conclusions that the Subtitle C option would result in excessive and inappropriate regulatory controls for CCRs are no longer true. The EPA’s 1993 final Regulatory Determination concluded that the four large
volume CCRs

– fly ash, bottom as h, boiler slag, and flue gas desulfurization waste

– do not warrant hazardous waste regulation. EPA emphasized that the inflexible Subtitle C hazardous waste framework was inappropriate for CCRs, explaining “that it is unlikely that Subtitle C
would effect ively address the problems associated with the four large

- volume fossil

- fuel combustion wastes [CCRs] without imposing unnecessary controls.”

This was an important conclusion. As the agency explained in outlining the factors that it would
evaluate in maki ng a final regulatory determination, “the special status of the [CCR] waste requires that the Agency consider the impacts to the industry that regulation under Subtitle C would create in making a decision to regulate the waste as hazardous.” EPA found that the rigid nature of the Subtitle C regulatory system would result in excess costs and unnecessary regulation as applied to CCR management units. After acknowledging that CCRs rarely exhibit a hazardous waste characteristic and thus would not be subject to hazardous waste controls unless they were listed as a hazardous waste, EPA emphasized that the listing approach would be inappropriate and excessive.

Having previously concluded that the Subtitle C approach would be inappropriate because, among other rea sons, it would result in the over

- regulation of CCRs in contravention of the Bevill amendment, EPA provides no explanation in the proposal as to what, if anything, has changed to suggest that the imposition of these very same Subtitle C controls will no lo nger result in inappropriate and unnecessary costs on the utility industry. As EPA itself noted earlier, “the special status of the [CCR] waste requires that the agency consider the impacts to the industry that regulation under Subtitle C would create in m aking a decision to regulate the waste as hazardous.” There is no reasoned explanation for EPA’s about

- face on this issue.

The excessive costs and unduly burdensome regulation of CCRs under the proposed Subtitle C option are at least as great today as the y were ten years ago when EPA rejected application of the Subtitle C hazardous waste rules for CCRs. As EPA has failed to explain why regulation of CCRs under Subtitle C is now appropriate, having expressly found earlier that such regulation
would be both “inappropriate” and in “excess of requirements” for CCRs, any final Subtitle C regulation would be arbitrary and capricious

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under250

subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10017

- 17 

### Organization 1 

### : Salt River Project (SRP) 

### Commenter 1 : Daniel J. Casiraro
Comm enter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: Moreover, the EPA may not so cavalierly reverse the Bevill Regulatory Determinations it made previously in August 1993 and May 2000. As mentioned in the Subtitle D comments above, EPA has provided two Reports to Congress ("Reports") and issued two Regulatory Determinations ("Determinations") that were based on extensive rese arch and analysis. Both Reports and Determinations clearly affirmed the regulation of CCRs as non

- hazardous waste and supported regulation of CCRs under RCRA Subtitle D. In the Reports and Determinations, EPA recommended that states implement CCR disposal rules under RCRA Subtitle D and supported
the continued beneficial use of CCRs.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR unde r subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10017

- 8 

### Organization 1 

### : Salt River Project (SRP) 

### Commenter 1 : Daniel J. Casiraro Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.5 4.2.4 2.1.3 

### Comment Excerpt Text: In its proposal, EPA appears to ignore the long rulemaking record relating to CCRs. Over the last twenty years, EPA has provided two Reports to Congress and issued two R egulatory Determinations that unequivocally found that CCRs do not warrant regulation as a hazardous waste. Further, the Reports reiterate the fact that states are the most appropriate regulatory agencies for regulation of CCRs and noted that EPA would ret ain its existing regulatory authority under RCRA's imminent and substantial endangerment provisions under RCRA Section 7003. If EPA is now concerned with its ability to enforce a Subtitle D program, EPA should look to the federal enforceable regulations fo r municipal solid waste landfills ("MSWLFs") under 40 CFR Part 258, as authorized by RCRA Sections 4010(c) and 4005(c) for guidance. The MSWLF regulations provide states with program implementation and regulatory authority over MSWLFs while allowing EPA to step in when states do not fulfill their251

obligations.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 3 

### 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 Ass igned/Due:



### Comment Excerpt Text: Shortly after enactment of the Bevill Amendment in 1980, EPA began the required report to Congress (“Report to Congress”) but soon realized that the scope of such a report would be so broad that the Agency would have difficulty completing the work by the statutory deadline of October 1982. As a result, EPA divided the statutorily mandated report to Congress into two phases. The initial phase addressed the four large

- volume CCRs generated by coal

- fired electric
utilitie s, including: fly ash, bottom ash, boiler slag, and flue gas emission control waste. See 1988 Report to Congress at ES

- 2; 58 Fed. Reg. 42466, 42467 (Aug. 9, 1993).

The second phase covered all other combustion wastes generated by utilities and non

- utiliti es, including the above

- identified CCRs when co

- managed with certain low volume wastes. See id.; see also 1999 Report to Congress at ES1

- 2; 65 Fed. Reg. 32214, 32218 (May 22, 2000).

A. EPA’s March 1988 Report To Congress On CCRs

Pursuant to this two

- phas e approach, EPA published its first Report to Congress on March 8, 1988, concluding that the large

- volume coal combustion waste streams listed above generally do not exhibit hazardous characteristics under current RCRA regulations, and therefore “EPA does not intend to regulate under [RCRA] Subtitle C fly ash, bottom ash, boiler slag, and flue gas desulfurization wastes. 1988 Report to Congress at ES

- 6. The 1988 Report to Congress also encouraged the use of coal combustion wastes to the extent such use can be done in an environmentally safe manner. Id. at ES

- 8.

B. EPA’s 1993 Final Regulatory Determination For CCRs

EPA published its first final Regulatory Determination for CCRs on August 9, 1993. [Footnote 7: In September 1991, an Oregon

- based citizens grou p, Citizens Interested in Bull Run, Inc., filed a RCRA citizen suit against EPA for the Agency‘s alleged failure to meet certain statutory deadlines, including the Bevill Amendment‘s October 1982 statutory deadline for issuing a final regulatory determinat ion for CCRs. Gearhart v. Reilly, No. 91

- 2345 (D.D.C. 1991) (“Bull Run”). USWAG intervened in the litigation, and EPA entered into a settlement agreement in which it agreed to issue the final regulatory determination for the electric utility

- CCRs addressed in the252

1988 Report to Congress by August 2, 1993, while deferring a supplemental report to Congress and regulatory determination on all other fossil fuel combustion wastes, including CCRs managed with certain low volume wastes, until April 1, 1998.] This final Regulatory Determination set forth EPA‘s conclusion that RCRA Subtitle C regulation of the four large

volume CCRs

– fly ash, bottom ash, boiler slag, and flue gas desulfurization waste

– was not warranted. 58 Fed. Reg. 42466 (Aug. 9, 1993). Specifica lly, the Agency concluded 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 control waste] because of the limited risks posed by them and the ex istence of generally adequate State and Federal regulatory programs. The Agency also believes that the potential for damage from these wastes is most often determined by site

- or region

- specific factors and that the current State approach to regulation is thus appropriate. Therefore, the Agency will continue to exempt these wastes from regulation as hazardous wastes under RCRA Subtitle C .... EPA will consider these wastes during the Agency‘s ongoing assessment of industrial non

- hazardous wastes under RCRA
Su btitle D.

Id. at 42466.

EPA‘s conclusion not to regulate CCRs under Subtitle C was also based on the inflexible Subtitle C hazardous waste framework, which the Agency found inappropriate for CCRs. The Agency stated that “it is unlikely that Subtitle C wo uld effectively address the problems associated with the four large

- volume fossil

- fuel combustion wastes [CCRs] without imposing unnecessary costs.” Id. at 42477. EPA reached this conclusion after evaluating a number of factors, including “the impacts to t he industry that regulation under Subtitle C would create . . . .” Id. at 42471. Not surprisingly, EPA found that the rigid nature of the Subtitle C regulatory system would result in excess costs and unnecessary regulation as applied to CCR management
unit s:

A Subtitle C system would require coal combustion units to obtain a [RCRA] Subtitle C permit (which would unnecessarily duplicate existing State requirements) and would establish a series of waste unit design and operating requirements for these wastes , which would generally be in excess of requirements to protect human health and the environment. For example, if such wastes were placed in the Subtitle C universe, all ash disposal units would be required to meet specific liner and monitoring requirement s. Since [CCR] sites vary widely in terms of topographical, geological, climatological, and hydrological characteristics (e.g., depth to groundwater, annual rainfall, distance to drinking water sources, soil type) and the wastes‘ potential to leach into th e groundwater and travel to exposure points is linked to such factors, it is more appropriate for individual States to have the flexibility necessary to tailor specific controls to the site or region specific risks posed by these wastes.

Id. at 42477.

Res ponse: The Agency acknowledges and appreciates the comment. 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.253



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10497

- 2 

### Organization 1 

### : Seminole Electric Cooperative, Inc. (Seminole) 

### Commenter 1 : Carl Eldred Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: III. EPA’s Proposed Regulation of CCRs under Subtitle C is Ultra Vires and Exceeds EPA’s Statutory Authority For the first time, EPA has published a proposal to regulate CCRs destined for disposal as hazardous wastes. In so doing, EPA is attempting to reverse its 1993 final regulatory determination which, following an extensive study, report to Congress, and public comment, determined that subtitle C regulation of CCRs was not warranted. 58 Fed. Reg. 42466 (Aug. 9, 1993). This determination was confi rmed in 1999 in the second part of EPA’s regulatory determination which applied to coal combustion wastes other than the four large volume coal combustion wastes. 65 Fed. Reg. 32214 (May 22, 2000). EPA was granted limited statutory authority to make a sing le determination as to whether CCRs should be regulated as a hazardous waste. EPA exercised this authority in 1993 in relation to the large volume CCRs and does not have the statutory authority to reverse that determination absent specific congressional

au thorization. Moreover, even assuming EPA did possess such authority, it did not follow the mandated statutory process for rendering a regulatory determination. Consequently, the subtitle C option is ultra vires and unlawful. a. EPA’s Regulatory Determinati on is Complete and Can Not be Reopened Absent Specific Congressional Authorization In 1980, Congress amended the Resource Conservation and Recovery Act (“RCRA”) and established an exemption from hazardous waste regulations for CCRs. The exemption, known as the Bevill Amendment, is set forth in a section entitled “Identification and listing of hazardous waste.” 42 U.S.C. § 6921. Subsection (a) requires that EPA “promulgate criteria for identifying the characteristics of hazardous waste, and for listing speci fic hazardous wastes, which would be subject to the provisions of this subchapter.” Id. at § 6921(a). Within that statutory section, CCRs were specifically identified as exempt from hazardous waste regulations pending EPA’s completion of a study. Id. at § 6921(b)(3)(A). Specifically, EPA was directed to conduct “a detailed and comprehensive study” analyzing eight enumerated factors, and to submit a “report on the adverse effects on human health and the environment, if any, of the disposal and
utilization of CCRs.” 42 U.S.C. § 6982(n). The report was to be submitted to Congress, and thereafter subject to public comment and hearings. 42 U.S.C. § 6921(b)(3)(C). Based on its findings, EPA was to publish its determination as to whether CCRs should be regulated as hazardous waste. Id. In 1993, EPA completed this process for fly ash, bottom ash, boiler slag, and flue gas emission control waste and published its final regulatory determination in the Federal Register. 58 Fed. Reg. 42466. Specifically, the agency concl uded that these large volume254

CCRs did not warrant regulation as hazardous waste. Id. This final regulatory determination was affirmed by EPA in May 2000 when it published its regulatory determination for all other fossil fuel combustion wastes generated at electric utilities that were not addressed in 1993. 65 Fed. Reg. 32214. While EPA found that subtitle C regulation of CCRs was unwarranted, it concluded that subtitle D regulation of CCRs disposed in landfills or surface impoundments, or used in minefill operations, was warranted. Id. EPA based its determination, in part, on increasing state regulation of CCR management, finding that “the regulatory infrastructure is generally in place at the state level to ensure adequate management of these wastes.” Id. at 32216

- 17. Furthermore, EPA stated that subtitle D controls would provide sufficient clarity and incentive for states to close the remaining gaps in state coverage. Id. at
32217. Despite the findings of the 2000 regulatory determination, EPA did not prom ulgate subtitle D regulations. Instead, more than eight (8) years later, it performed a u

- turn and drafted a regulatory proposal that would subject CCRs to subtitle C regulation. Draft CCR Proposal, EPA

HQ

- RCRA

– 2009

- 0640

- 0013 (Oct. 16, 2009). This regulato ry proposal was substantially revised following review by the Office of Management and Budget and resulted in the current Proposed Rules. Comparison of Final Draft Rule, EPA

- HQ

- RCRA

– 2009

- 0640

- 0012 (May 3, 2010). Even as revised, the adoption of the subtitl e C proposal would unlawfully reverse the 1993 regulatory determination. EPA cannot simply reverse its final regulatory determination without Congressional authorization. The Bevill Amendment directed EPA to follow a specific and comprehensive process culm inating in a final determination as to whether subtitle C regulation of CCRs was warranted. 42 U.S.C § 6921(b)(3)(C). EPA followed that process and in 1993 issued its final regulatory determination for the four large Volume CCRs. 58 Fed. Reg. 42466. Congre ss did not authorize EPA to revisit its determination or conduct an ongoing evaluation. The statutorily mandated process, therefore, is complete, and there remains nothing further for EPA to do absent specific Congressional direction or authorization. Abse nt such clear direction, EPA is without authority to reverse its final determination. The statutory text of the Bevill Amendment shows Congress’s unmistakable, unambiguous expressed intent that EPA conduct only one determination. Congress repeatedly called on EPA to produce one, single study. 42 U.S.C. § 6982(n) (“a ... study,” “a report,” “such study,” “this study,” “shall publish a study on such report”). Furthermore, the verbs in the text indicate EPA and Congress must act on a single study. Id. (providing for study of several factors at one time; for publication of the study on a single, specified date; and for presentation of a single report to committees). [Footnote 1: EPA ultimately performed two studies and two regulatory determinations published in 19 93 and 2000. This bifurcated process was imposed by the consent decree entered in Gearhart v. Browner, No. 91

- 2435 (D.D.C), as a result of EPA’s delayed completion of the study and report mandated by Congress. Specifically, the consent decree
directed EPA to complete its regulatory determination for the four large volume wastes by August 2, 1993, and to complete its regulatory determination for the “remaining wastes”

- i.e., all other fossil fuel combustion wastes generated at electric utilities that were n ot addressed in 1993

- by April 25, 2000. 65 Fed. Reg. at 32218. Even so, this simply meant EPA’s single study was divided into two parts, thereby keeping with Congressional intent.] Furthermore, this understanding of Congressional intent is supported by t he statutory text of RCRA. Section 8002 of the act, 42 U.S.C. § 6982, is entitled “Special studies; plans for research, development, and demonstrations.” The Bevill Amendment was placed in this section because it was only one of many studies Congress manda ted that EPA conduct. Each of these studies, then,255

provides some context to the Bevill Amendment. Section 8002 delineates over 19 types of studies. Of these, 18 use similar language to the Bevill Amendment and clearly indicate that only one study was to be conducted. Conversely, subsection (s), which deals with extending the useful life of landfills, just as clearly indicates that multiple studies are necessary. Specifically, this subsection requires “comprehensive studies,” and “such studies shall address” a number of factors Congress listed. Id. at (s). Congress also indicated its ongoing interest in the subject by requiring that “[t]he Administrator shall periodically report on the results of such studies.” Id. Thus, had Congress
intended for the Bevill A mendment determination to be ongoing, it would have used language like it did in subsection (s). Congress would have stated that it wanted multiple reports and would have explicitly required EPA to continue to submit periodic reports. Congress did not

prov ide such authority, and EPA cannot act without it. EPA may claim that it left the door open for an ongoing review. It did not, and it cannot. In the 2000 regulatory determination, EPA stated that it “may conclude over the next several months
that this deci sion [not to regulate CCRs under subtitle C] should be revised.” 65 Fed. Reg. 32218. Such language is meaningless, absent clear Congressional authorization, and it does not enable EPA to render its final regulatory determination a work in progress. This ar gument also ignores the fact that the final regulatory determination for the four large volume CCRs (fly ash, bottom ash, boiler slag and FGD waste) was published in 1993. While the 2000 regulatory determination affirmed the 1993 regulatory determination, its focus was explicitly limited to the “remaining wastes.” Id. Therefore, even if such language was sufficient to keep the regulatory determination open, it would be limited to the subject matter of that specific regulatory
determination and not the four large volume CCRs

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10498

- 6 

### Organization 1 

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

### Commenter 1 : Carl Eldred Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: a. The Decisive Factors in EPA’s Two Previous Determinations Remain Valid Today

In its 1993 Regulatory Determination, EPA recognized that hazardous constituents in CCRs have the potential to leach into groundwa ter under certain conditions, but that exceedences above toxicity characteristic regulatory levels were infrequent and that the average concentrations of constituents were below characteristic toxic levels. 58 Fed. Reg. 42475

- 76. EPA also found that the po tential for human exposure solely from the large

- volume CCRs was limited under the management practices employed at the time and further noted that management practices were moving toward more protective management practices, including lined systems and gr oundwater256

monitoring. Id. These findings lead EPA to conclude that management practices and regulatory controls were adequate. Id. at 42476. Not only did EPA conclude that existing state programs were adequate, EPA determined that it was “unlikely that sub title C regulations would effectively address the problems associated with the four

- large volume CCRs without imposing unnecessary controls.” Id. at 42477. Specifically, EPA found that many of the unit design and operating requirements would exceed require ments to protect human health and the environment, and that existing state requirements would be unnecessarily duplicated. Id. Based on these findings, EPA concluded that subtitle C regulations were not appropriate to address the problems
associated with C CRs and that they should be addressed by states. Id.

Again, in 2000, EPA reached the same ultimate determination for similar reasons. EPA found that CCRs may pose risks to human health and the environment if they are not properly managed. 65 Fed. Reg. 322 16. At the same time, however, EPA recognized that generally the regulatory infrastructure was in place at the state level to ensure that CCRs are adequately managed. Id. at 32217. Indeed, EPA recognized states were increasingly requiring liners and ground water monitoring for CCR landfills and surface impoundments and that there was increased regulatory oversight of these facilities by states. Id. at 32216. In fact, the trends in disposal and utilization practices were identified by EPA as the first of thre e “decisive factors” in its decision not to regulate CCRs under subtitle C. Id. at 32215. EPA’s own statistics indicate that this factor remains valid today.

Based on the information presented in the 2000 joint EPA and United States Department of Energy ( “DOE”) study, state regulation of CCR landfills and surface impoundments continues to improve. EPA & DOE, Coal Combustion Waste Management at Landfills and Surface Impoundments, 1994

- 2004, (Aug. 2006), at http://www.fossil.energy.gov/programs/powersystems/ pollutioncontrols/coal_waste_report.pdf. (“EPA/DOE Report”).[Footnote 4: Although the EPA/DOE Report addressed only eleven states, those states represent approximately half of the CCRs generated in the nation. 75 Fed. Reg. 35151.] As noted by EPA, with one exception, all new landfills and surface impoundments constructed between 1994 and 2004 were constructed with liners. 75 Fed. Reg. 35151. By way of comparison, from 1985 to 1995, seventy

- five (75) percent of landfills and sixty (60) percent of surface imp oundments were constructed with liners. EPA/DOE Report, at S

- 5. A similar increase was identified in relation to the number of landfills and surface impoundments constructed with groundwater monitoring systems. Ninety

- seven (97) percent of landfills and ne arly eighty (80) percent of surface impoundments constructed or expanded between 1994 and 2004 have groundwater monitoring systems. Id. Again, by way of comparison, eighty

- eight (88) percent and sixty

- five (65) percent of landfills and surface impoundments respectively, constructed between 1985 and 1995, had groundwater monitoring systems. Id. at S

- 6. The EPA/DOE Report also found that the majority of states surveyed had tightened regulatory controls for liners, groundwater monitoring, and leachate collecti on since the time data was collected for the 1988 EPA Report to Congress. Id. at S

- 8.

Based on these findings, the EPA/DOE Report concluded that the “data and analyses documents in this report provide new information that appears to show improved managem ent of [CCRs] in both landfills and surface impoundments.” Id. at S

- 11; see also, 75 Fed. Reg. at 35151 (stating that “[t]he results of the joint DOE and EPA study...indicate that of the states evaluated in this257

report, state regulations have generally impro ved since 2000. In addition it would appear that the industry itself is changing and improving its management practices.”) A recent survey conducted by the Association of State and Territorial Solid Waste Management Officials (“ASTSWMO”)
also indicates tha t state regulation of CCRs continues to improve. Thirty

- six (36) out of forty

two (42) states that generate CCRs have permit programs for CCR landfills. Letter from ASTSWMO to Matt Hale (Apr. 1, 2009), EPA

- HQ

- RCRA

- 2009

- 0640

- 0024 (“ASTSWMO Survey”). Only th ree (3) states indicated that they do not have a permit program for CCR landfills, the remaining three (3) states did not respond. Id. Of the thirty

- six (36) states that have CCR surface impoundments, twenty

- five (25) stated that they have a permit program in place for these facilities. Id. Again, only three (3) states responded that they do not have a regulatory program for surface impoundments and eight (8) states did not respond. Id. In the Proposed Rules, EPA provided additional information from ASTSWMO , which indicates that fifteen states had revised their regulatory requirements for CCRs since 2000 and that eight (8) states now require groundwater monitoring that had not previously. 75 Fed. Reg. 35152.

It also is important to note that while some stat es may not have specific regulations for the disposal of CCRs, they do impose liner and groundwater monitoring requirements under separate regulatory authorities. Florida regulates CCRs as an industrial solid waste and many of the liner and groundwater mon itoring 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 there under. See 75 Fed. Reg. 35152. Therefor e, the actual number of states that are imposing liner and groundwater monitoring requirements may be higher than reflected in the survey. Regardless, based on the foregoing information alone, it appears that states with CCR landfills and surface impoundme nts are continuing to make improvements in the regulation of CCRs, and that industry is making improvements to CCR management practices.

The second “decisive factor” cited by EPA in its 2000 determination not to regulate CCRs under
subtitle C was the curr ent and potential utilization of CCRs. 65 Fed. Reg. 32215. EPA acknowledged industry concerns regarding the adverse impact that subtitle C regulation of CCRs may have on beneficial use rates and stated that it did not want to “place any unnecessary
barrier s” on beneficial uses of these materials. 65 Fed. Reg. 32217. At the time, approximately
twenty

- three (23) percent (roughly twentyeight (28) million tons) of CCRs generated each year were beneficially used. Id. at 32217. In 2008, approximately thirty

- seven (37) percent (roughly 50 million tons) of CCRs generated each year were beneficially used. ACAA, Coal Combustion Product Production & Use Survey Report, (2008) available at http://acaa.affiniscape.com/associations/8003/files/2008_ACAA_CCP_Survey_Report_FI NAL_ 100509.pdf.; see also 75 Fed. Reg. 35151. This represents a fourteen (14) percent increase in beneficial use over roughly an eight year period.

Although EPA has proposed to exempt certain CCRs that are destined for beneficial use from subtitle C regul ation, the mere fact that CCRs destined for disposal may be subject to subtitle C regulation has already impacted the beneficial use market. One FCG member has already received requests from clients seeking to renegotiate existing contracts and to reduce “ minimum take” provisions (i.e., the minimum amount of CCRs they are obligated to accept) and to include new terms that make their contractual obligations contingent upon the outcome of this258

rulemaking. At numerous public hearings on the Proposed Rules, CCR marketers and members of the recycling industry have submitted testimony detailing the stigma associated with subtitle C regulation of CCRs destined for disposal and the impact it is and will have on their businesses. At the public hearing in Charlotte, N orth Carolina, several company representatives and individuals testified that they have already experienced cancelled contracts or renegotiated contracts based purely on EPA’s proposed rules and the mere possibility of subtitle C regulation.
Others testifi ed that they have been informed by major clients that they will no longer purchase products produced from CCRs if the disposal of CCRs is regulated under subtitle C. Clearly, the stigma associated with the potential regulation of CCRs destined for disposal under subtitle C is adversely impacting the beneficial use of CCRs. If adopted, the subtitle C option will likely devastate the beneficial use market for CCRs. Concerns regarding potential “barriers” to CCR beneficial use, therefore, are equally, if not m ore valid today than they were in 2000.

The third “decisive” factor was the Congressional admonition against duplication of efforts by other Federal and state agencies. 65 Fed. Reg. 32215. This admonition was recognized in 1993 by EPA when it specifically found that subtitle C regulations, particularly the need to obtain a subtitle C permit, would unnecessarily duplicate existing state regulations. See 58 Fed. Reg. 42477. If that was true then, it is certainly true today. As discussed more fully above, the ASTSWMO survey found that the majority of states that generate CCR’s have permit programs in place for CCR landfills and surface impoundments. See 75 Fed. Reg. 35152. As EPA recognized, such permit programs are important to provide necessary regulatory ov ersight. Id. Therefore, the prevalence of such programs is a strong indicator that states are effectively regulating and overseeing the operation of CCR landfills and surface impoundments.

This trend was noted yet again in the 2000 Regulatory Determinatio n, where EPA found that states had made substantial progress regulating the disposal of CCRs and the regulatory infrastructure was in place at the state level to ensure that CCRs are adequately managed. 65 Fed. Reg. 32217. The EPA/DOE Report and the ASTSWM O survey results both indicate that state regulation of CCR disposal has generally improved since then. 75 Fed. Reg. 35152. Therefore, in light of the increased state regulation of CCR landfills and surface impoundments, and the existence of state permitti ng programs, the admonition against duplication of state efforts is even more compelling now than it was in 2000.

The three decisive factors identified in 2000 as the basis for EPA’s affirmation that subtitle C regulation was unwarranted remain true today . Further, EPA has failed to provide any evidence indicating that state regulation of CCR disposal is not continuing to improve, that the beneficial utilization of CCRs will not be impacted by the subtitle C option, or that subtitle C regulation
will not u nnecessarily duplicate state regulations. Absent justification as to why these factors are no longer valid, adoption of the subtitle C option would be arbitrary and capricious. See Motor Vehicles Mfrs. Ass’n. v State Farm Mutual Auto. Ins. Co., 463 U.S. 29 , 43 (1983) (finding that agencies “must examine the relevant data and articulate a satisfactory explanation for its action, including a "rational connection between the facts found and the choice made”)(internal quotations omitted).

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under259

subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10542

- 1 

### Organization 1 

### : U.S. House of Representatives 

### Commenter 1 : Randy Stewart Commenter Type: Federal Elected Official
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: 1 . Such regulation is wholly unwarr anted from an environmental perspective and is inconsistent with past EPA rulings on two occasions, in 1993 and again in 2000, the EPA has determined that coal ash should not be regulated as a hazardous waste under the RCRA's hazardous waste program. Nothi ng has changed regarding the nature of coal ash

- it is the same product now as in 1993 and in 2000. What has changed is that a TVA impoundment dam failed in December 2008, raising the awareness of how coal ash is stored. That was a structural issue with th e dam itself

- a totally separate issue from the composition of coal ash. There is no question that dam integrity must be assured for all impoundments, but this regulation does not address that issue

Response: The Agency acknowledges and appreciates the comment. 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. Contrary to the commenter’s statement, the rule does address structur al integrity and the commenter can find the discussion of these provisions in Unit VI of the preamble and also in the regulatory text see specifically 257.73

– Structural integrity criteria for existing CCR surface impoundments and 257.74

– Structural inte grity for new CCR surface impoundments and any lateral expansion. Structural integrity for surface impoundments is also addressed in the location criteria, the inspection requirements, and the hyrologic and hydraulic capacity requirements for CCR surface impoundments.



### Comment Number: TRANS

- CHI

- 0125

- 2 

### Organization 1 

### : Environmental Integrity Project 

### Commenter 1 : Sam Flenner Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: In fact, there are some misinterpretations about determinations about coal ash in the past. In 1993, when the EPA made a determination for Subtitle D, they did state that the current disposal practices at the ti me could cause health and environmental problems in the future, and they have. In 2000, the determination, the press release from the EPA, there has been a whole drumbeat of letters talking about how the EPA determines D, EPA determined that. But here I'll take a quote from what they determined in the year 2000 and the quote is from their press release. Their press260

release states that "If the states and industry do not take steps to address these wastes adequately in a reasonable amount of time, and if the EPA identifies additional risk to public health, EPA will revisit this decision," and this revisiting of the decision is not any bit too soon

R esponse: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- CLT

- 0127

- 1 

### Organization 1 

### : Duke Energy 

### Commenter 1 : Chris Hallman Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: Duke Energy strongly supports the devel opment of Federal regulations for coal combustion
residuals under RCRA's Subtitle D non

- hazardous waste program. We believe that regulation under Subtitle C is unwarranted and we're not the only ones who think so. EPA's own significant study and past rule making process also supports this approach. The development of Subtitle D regulations would be the appropriate outgrowth of EPA's two reports to Congress and two final regulatory determinations under the Bevill Amendment declaring that
CCRs do not warrant hazardous waste regulation under RCRA Subtitle C. Throughout EPA's 20 years of study, it has consistently found that the Subtitle D approach, with active state involvement, was the appropriate regulatory course for CCRs. In addition, various
state and fed eral agencies, members of academia, and many others have studied CCRs for nearly three decades. These entities evaluated CCRs for toxicity levels and found them to be well below the criteria that would require a hazardous waste designation.
First in its 1 993 CCR Regulatory Determination and again in its second report to Congress in 1999, EPA concluded that RCRA Subtitle D is more appropriate for addressing the limited human health and environmental risks that may be associated with disposal of these wastes

. EPA reaffirmed the appropriateness of the Subtitle D option in its 2000 CCR regulatory determination, concluding that the Subtitle D regulations are the most appropriate mechanism for ensuring that CCRs disposed in landfills and surface impoundments are managed safely. EPA's decisive factors in reaching its final determination that CCRs do not warrant regulation as a hazardous waste include one, CCRs rarely exhibit a hazardous waste characteristic; two, trends demonstrate CCR disposal and utilization pra ctices are improving; and three, the current and potential beneficial use of CCRs are important advantages

R esponse: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- LVL

- 0032

- 1 

### Organization 1 

### : Kentucky Department of Environmental Protection 

### Commenter 1 : Bruce Scott26 1

Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### 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 addit ional controls are warranted for the management of CCR. Electrical generation in Kentucky uses approximately 42 million tons per year. Approximately 10 million tons per year of CCR is generated in Kentucky. EPA has previously declared in its Report to Co ngress in 1988 and 1999 that coal combustion waste are high volume and low hazard and do not warrant regulation under Subtitle C. EPA regulatory findings published in 1993 and 2000 indicated that these wastes do not warrant regulation under Subtitle C as w ell. However, EPA's proposed rule is not consistent with those previous conclusions and the state does not see a technical basis for EPA's change of course in this proposed rule

R esponse: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- LVL

- 0062

- 1 

### Organization 1 

### : Duke Energy 

### Commenter 1 : David Weiss Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: We believe that regulation under Subtitle C is unwarranted both environmentally and economically, but Duke Energy strongly supports the development of reasonable federal regulations for coal

- combustion residuals under EPA's Subtitle D non

- hazardous waste p rogram. And we are not the only ones who think so. EPA's own previous studies and past rule

- makings also support this approach. The development of Subtitle D regulations would be appropriate outgrowth of EPA's two reports to the Congress and two final reg ulatory determinations under the Bevill Amendment declaring that CCRs do not warrant hazardous waste regulation under RCRA Subtitle C. Throughout EPA's 20 years of study, it has consistently found that Subtitle D approach with
active state involvement was the appropriate regulatory course for CCRs. Various state and federal agencies, universities, and others have studied CCRs for nearly three decades. These entities evaluated CCRs for toxicity levels and found them to be well below the criteria that
would be a required hazardous waste designation. First in its 1993 regulatory determination, and then again in its second report to Congress in 1999, and then again in 2000, EPA concluded that Subtitle D is more appropriate for addressing the limited human healt h and environmental risk262

that may be associated with the disposal of these wastes. The factors that EPA used in reaching its final determination that CCRs do not warrant regulation as hazardous waste include (1) CCRs rarely exhibit a hazardous waste class ification; (2) recent trends demonstrate CCR disposal and utilization practices are improving; and (3) the current and potential beneficial use of CCRs are important advantages

R esponse: The Agency acknowledges and appreciates the comment.

Section 2.1.5

- RCRA legislative history Total Number of Submissions: 11 Total Number of Comments: 15



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06339

- 3 

### Organization 1 

### : Arizona Electric Power Cooperative, Inc. 

### Commenter 1 : Theresa D. Legere Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 2.1.4 

### Comment Excerpt Text: 2) Subtitle C Regulation violates the clear language and the legislative purpose of the Bevill Amendment to RCRA In 1980, Congress amended RCRA with the passage of the Bevill Amendment to ensure that EPA would not inappropriately subject CCRs to hazardous waste regulation. The amendment was intended to avoid the excessive costs associated wi th Subtitle C regulation of CCRs and to promote their beneficial use. In fact, the sponsors of the Bevill Amendment specifically stated their concerns regarding the fate of beneficial use of CCRs under Subtitle C regulation of CCRs. For example, Representa tive Bevill stressed that a primary purpose of his amendment was to support the “national commitment to encourage reuse of such materials as fly ash.”[Footnote 16: 126 Cong. Rec. at 3362.] Representative Findley advised that if CCRs were regulated under Su btitle C, the “flourishing industry which recycles these byproducts would be gravely disrupted and possibly closed down.”[Footnote 17: Id. at 3363.] Representative Harley Staggers stated bluntly that regulation of CCRs as a hazardous waste “would run count er to one of the principal designs of [RCRA]

– conservation of valuable material.”[Footnote 18: Id. at 3364

- 65.]

The Bevill Amendment addressed these concerns by suspending EPA’s authority to regulate
CCRs under Subtitle C of RCRA unless and until the A gency completed a study and reported to Congress on whether such regulation was warranted. With completion of the study and submission of the corresponding Report to Congress, the Bevill Amendment required EPA to make a final regulatory determination regar ding whether CCRs should be regulated under
Subtitle C.263

The Bevill Amendment required the Agency to base this final regulatory determination “on information developed or accumulated pursuant to [the RCRA § 8002] study, public hearings,
and comment. . . .”[Footnote 19: RCRA § 8002(n), 42 U.S.C. § 6982(n).] EPA submitted its first Report to Congress on March 8, 1988, concluding that fly ash, bottom ash, boiler slag, and flue gas emission control waste generally do not exhibit hazardous characteristics unde r RCRA. Accordingly, EPA stated that it did not intend to regulate those four large

- volume coal combustion waste streams. The initial report went on to encourage the utilization of coal
combustion wastes to the extent that such utilization could be done in an environmentally safe manner. Six months later, EPA reiterated in its first Regulatory Determination the conclusion that hazardous waste regulation was not warranted for those four large

- volume coal combustion

waste streams.

In short, EPA could only reach the decision to regulate CCRs under Subtitle C after following a statutorily prescribed series of steps that involved congressional oversight marked by EPA’s submission of reports to Congress that would inform the relevant congressional committees of jurisdiction of the Agency’s preliminary recommendations. [Footnote 20: 58 Fed. Reg. at 42477.]

The second Report to Congress, submitted in March 1999, again concluded that Subtitle C is inappropriate to address any problems associated with disposal of several other fossil fuel combustion wastes, including CCRs managed with certain low

- volume wastes and that “the continued use of site and region specific approaches by the states is more appropriate for addressing the limited human health and environment al risks that may be associated with disposal of these wastes.” In May 2000, EPA completed the Bevill Amendment’s statutorily prescribed assessment and reporting process when it issued its final Regulatory Determination for all remaining fossil fuel combus tion wastes, including CCRs managed with certain low

volume wastes.[Footnote 21: See 65 Fed. Reg. at 32214.] Echoing its first Regulatory Determination, EPA concluded that CCRs and other fossil fuel combustion wastes did not warrant regulation under RCRA’s Subtitle C hazardous waste program, determining instead that regulation as a non

- hazardous solid waste under Subtitle D of RCRA would be appropriate when CCRs are disposed of in landfills or surface impoundments.[Footnote 22: Id.]

Because of their dive rse natures, CCR disposal facilities are ill

- suited to regulation under the Subtitle C hazardous waste program. In its final determination that CCRs should not be subject to Subtitle C regulation in 2000, EPA stated that “it is more appropriate for individ ual States to have the flexibility necessary to tailor specific controls to the site or region specific risks posed by these wastes.”[Footnote 23: See NRECA Comments to this 2010 Proposed Rule (citing 58 Fed. Reg. at 41477).]

Response: The Agency acknowle dges and appreciates the comment. The commenter is264

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill

Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06339

- 4 

### Organization 1 

### : Arizona Electric Power Cooperative, Inc. 

### Commenter 1 : Theresa D. Legere Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Se ctions: 2.1.6 

### Comment Excerpt Text: 3) EPA’s proposed Subtitle C Option is arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with the law The Administrative Procedure Act empowers courts to review “agency action, findings, and conclusions” if they are “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.”[Footnote 24: 5 U.S.C. § 706(2)(A).] Before taking an agency action, such as rule making, the agency is required to “examine the
releva nt data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choices made.”[Footnote 25: Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77

L.Ed.2d 443 (1983).] The court must then review that explanation and evaluate “whether the
decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.”[Footnote 26: Id.]

A rule is arbitr ary and capricious “if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the age ncy, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”[Footnote 27: Id.]

In this case, EPA’s action in proposing a final rule contrary to its earlier final determination regarding the Bevil l Wastes in its Report to Congress is, first of all, “not in accordance with law.” The Bevill Amendment directed the EPA to complete a study considering all the listed factors equally and then make a single determination whether the CCRs should be regulate d under Subtitle C. Once EPA made this determination, it had no authority to institute a notice of proposed rulemaking, and a reviewing court is likely to rule against the EPA. The Bevill265

Amendment does not provide for a reconsideration of that determinati on more than 30 years after the statute was enacted and more than 20 years after EPA’s final determination (in 1988) that the Bevill Wastes should not be regulated under Subtitle C.

Moreover, “no provision of the Bevill Amendment assigns an absolute pri ority to any one [study] factor, including hazardousness.”[Footnote 28: See Environmental Defense Fund v. EPA, 852 F.2d 1309, 1314 (D.C. Cir. 1988) (discussing the Bevill Amendment in the context of mining wastes). See also RCRA § 8002(n), 42 U.S.C. § 6982 (n). (Congress mandated that the EPA Administrator should conduct a study evaluating the following eight factors and submit its findings in a Report to “the Committee on Environment and Public Works of the United States Senate and the Committee on Energy a nd Commerce of the United States House of Representatives”: 1) the source and volumes of CCR materials generated per year; 2) present disposal and utilization practices; 3) potential danger, if any, to human health and the environment from disposal and reu se of such materials; 4) documented cases in which danger to human health or the environment from surface runoff or leachate has been proved; 5) alternatives to current disposal methods; 6)costs of such alternatives; 7) the impact of those alternatives on the use of coal and other natural resources; and 8) the current and potential utilization of such materials).] In fact, as pointed out by the District of Columbia Federal Court of Appeals in an analogous discussion of mining wastes, the legislative history “strongly suggests that Congress designed the Bevill Amendment to break with the previous approach to regulation of hazardous industrial wastes.”[Footnote 29: Environmental Defense Fund v. EPA, 852 F.2d at 1314] The D.C. Court of Appeals elaborated as fol lows:

With respect to ordinary industrial wastes, the structure of Subtitle C manifests a congressional assumption that these wastes, if found to be “hazardous” [under the criteria for identifying and listing wastes], would also prove dangerous to healt h and environment. A finding of a hazardous characteristic was sufficient to trigger regulation. See 40 C.F.R. §§ 261.11(a)(1). While the § 8002(p) studies of [Bevill] wastes necessarily require an evaluation of hazardousness, the provisions mandating thes e studies nowhere mention “hazard.” In § 8002, Congress asks EPA to investigate risk or danger to human health and environment

- a context

- specific concept. This evinces a congressional understanding that “hazardous” [Bevill] wastes might not prove dangerous . This understanding was most clearly expressed in the Conference Report discussing the later 1984 HSWA, § 3004(x):

This amendment recognizes that even if some of the special study wastes are determined to be hazardous it may not be necessary or appropr iate, because of their special characteristics or other factors, to subject such wastes to the same requirements that are applicable to other hazardous wastes, and that protection of human health and the environment does not necessarily imply the
uniform a pplication of requirements developed for disposal of other hazardous wastes. [See H.R.Conf.Rep. No. 1133, 98th Cong., 2d Sess. 93, reprinted in 1984, U.S.Code Cong. &266

Admin.News 5576, 5664.]

The legislative history of the Bevill Amendment confirms that Congress eschewed a narrow technical approach to imposition of Subtitle C controls, choosing to evaluate the need for regulations by [focusing] on the actual dangers posed by [Bevill] wastes. Congressman Bevill's discussion of the Amendment is replete with references to “the degree of hazard posed by these wastes” and the need to develop “meaningful regulation to deal with the truly hazardous waste products which threaten our communities.” 126 Cong.Rec. 3361 (Feb. 20, 1980) (remarks of Rep. Bevill) (emphasi s added). The goal of the study of [Bevill] wastes was to “determine whether, if at all, these materials present any hazard to human health or the environment.” Id. (emphasis added). These and other passages make plain that, despite his use of the term
“ha zard,” Rep. Bevill was directing attention to the actual risk posed by the wastes. This approach is clearly at odds with EDF's interpretation of the statute as mandating Subtitle C regulation upon a finding of hazardousness.

The § 8002(p) study provisio n lists cost as an independent factor. During the discussion of the Amendment, Rep. Bevill stated, “[t]hese studies would include evaluation of the economic and environmental aspects of existing and alternative disposal and reuse options. EPA would also be required to focus on the impact of these alternatives on the use of our coal and other natural resources.” 126 Cong. Rec. 3361. These remarks confirm that Congress intended attention to cost and the economic impact of regulatory controls in making a regul atory determination. The emphasis on economic factors is consistent with Congress' obvious goal in enacting the Bevill
Amendment

- to relieve the [Bevill

- waste industries] of the onerous economic burden of stringent Subtitle C controls if at all possible. If [Plaintiff] deems undesirable separate consideration of the cost of regulation, this objection should be addressed to Congress and not to this court.[Footnote 30: Environmental Defense Fund v. EPA, 852 F.2d at 1314

- 1316.]

Likewise, EPA’s focus on the a lleged hazardousness of CCRs, without giving equal priority to the negative impact on the beneficial use of CCRs if regulated under Subtitle C, is in clear violation of the language and legislative intent of the Bevill Amendment, which was in part to
relie ve the utility industry “of the onerous economic burden of stringent Subtitle C controls if at all possible.”[Footnote 31: Id.]

Finally, if Congress had intended to give the EPA authority to promulgate regulations or make periodic reviews and adjustment s to the level of regulation for CCRs without EPA first submitting the statutorily mandated report to Congress examining the eight statutory factors,[Footnote 32: See n.28, supra] Congress would have included such provision(s) in the
statute as it did in o ther environmental quality statutes. For example, in the Clean Air Act,267

Congress directed the EPA to periodically review, revise, and publish air quality criteria for pollutants;[Footnote 33: 42 U.S.C. §7408] periodically review, revise, and publish the st atutory list of hazardous air pollutants;[Footnote 34: 42 USC §7412(b)(2)] and at five year intervals, complete a thorough review of the criteria for pollutants published under section 7408 and the national ambient air quality standards promulgated under s ection 7409 and make such revisions as may be appropriate.[Footnote 35: 42 U.S.C. §7409(d)]

In the Clean Water Act, Congress directed the EPA to review and revise its published water quality standards from time to time;[Footnote 36: 33 U.S.C. §1314(a)] review its published regulations for effluent limitations annually and revise them if appropriate;[Footnote 37: 33 U.S.C. §1314(b)] from time to time review, revise, and publish information on the processes or operating methods which result in the eliminat ion or reduction of the discharge of pollutants;[Footnote 38: 33 U.S.C. §1314(c)] and from time to time, as technology and alternatives change, revise its published regulations establishing Federal standards of performance for new sources of pollution.[Foo tnote 39: 33 U.S.C. §1316]

For example, Arizona Electric Power Cooperative’s facility is regulated by the Arizona Department of Water Resources, the Dam Safety and Flood Mitigation Division, and the Arizona Department of Environmental Quality. Both agen cies maintain rigorous compliance programs and conduct frequent inspections to ensure that applicable maintenance and safety standards, including groundwater monitoring are followed. The EPA also recently affirmed the structural integrity and proper operat ion of the impoundment through an independent assessment. This assessment resulted in a satisfactory rating at the AEPCO facility, which is the highest possible rating.

Because the Bevill Amendment was specific and limited in what it authorized the EPA to do and regarding Congress’ reasons for doing it the way it did, the EPA’s Proposed Rule is not in accordance with the law and is an abuse of the EPA’s discretion. Additionally, a court reviewing under the Administrative Procedures Act is likely to find EPA’s Proposed Rule arbitrary and capricious because EPA has failed entirely to consider important aspects of the problem; because EPA is relying on factors in a way in which Congress has not intended it to consider them; and because EPA has offered an exp lanation for its decision that runs counter to the evidence before the agency.

For example, EPA’s proposed rule (1) is inconsistent with the Bevill Amendment’s directive that any final determination not impair CCR beneficial use; (2) is at odds with Con gress’s express directive that any regulatory program for CCRs not discourage the use of coal by imposing undue regulatory costs on the management of CCRs; (3) disregards the nearly unanimous views268

of the federal and state agencies, with which the Bevill A mendment directs EPA to consult in reaching a final regulatory determination, that Subtitle C regulation is not warranted for CCRs; (4) is inconsistent with EPA’s own findings that state programs can properly address CCR disposal practices under RCRA Subti tle D; and 5) inappropriately includes potential damage cases in its evaluation of the appropriate regulatory option for CCRs when the Bevill Amendment directs the Agency to evaluate only those instances where such danger has been proved when considering t he “documented cases” of danger from the management of CCRs.[Footnote 40: See specific examples set out in NRECA’s Comments to this 2010 Proposed Rule, which are adopted and approved herein by reference.]

Because the EPA has relied on factors which Cong ress has not intended it to consider; entirely failed to consider important aspects of the problem; offered explanations for its decision that runs counter to the evidence before the EPA; and lacks the authority to reverse its 1993 and 2000 Regulatory Dete rminations, both of which found that CCRs do not warrant Subtitle C regulation, a reviewing court would likely find any EPA final rule under which Bevill Wastes are regulated under Subtitle C to be arbitrary and capricious, an abuse of discretion, and othe rwise not in accordance with the law.[Footnote 41: Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).]

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a fi nal Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 13 

### 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: 2.1.3 

### Comment Excerpt Text: In addition to the devastating impact that regulation under Subtitle C would have on the beneficial use of CCR, the Subtitle C option would constitute an impermissible reversal of EPA’s final 2000 Regulatory Determination that CCR does not warrant hazardous waste regulation. It would also be in direct contra vention of RCRA’s plain language establishing an unambiguous statutory process by which EPA can determine whether and how to regulate CCR under RCRA. EPA is, at a minimum, obligated to adhere to the statutory procedures that Congress prescribed for making the original regulatory determination, including providing a269

Report to Congress setting forth its recommendation.[Footnote 6: Duke Energy refers EPA to the USWAG comments for a complete discussion of the legal and policy reasons why EPA cannot regulate CCR under the Subtitle C option.]

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill

Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06956

- 20 

### Organization 1 

### : Tri

- State Generation & Transmission 

### Commenter 1 : Barbara A. Walz Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.6 

### Comment Excerpt Text: C. Assuming, For Purposes Of Argument, That EPA Is Authorized To Make A Second Regulatory Determination, EPA Has Failed To Adhere To T he Bevill Amendment's Prescribed
Process Even assuming that RCRA could be read as authorizing EPA to reverse its final Regulatory Determination for CCRs, the Agency would have to adhere to the statutorily

- prescribed procedures that Congress demanded EPA to follow in determining whether and how to regulate CCRs. Even EPA has recognized this; in responding to Representative Markey’s inquiry to EPA about the steps it would need to take to regulate CCRs under RCRA Subtitle C, the Agency
stated that it would be “advisable [for EPA] to go through the same process we followed” in issuing the 1993 and 2000 final Regulatory Determinations [Footnote 6: See Jan. 30, 2009 letter from EPA Acting Associate Administrator Joyce Frank to Rep. Edward Markey, Chair of the
Hous e Energy and Commerce Subcommittee on Energy and Environment.]. Despite what it advised Congress, EPA has strayed beyond the plain language of the statute by proposing to reverse its final Regulatory Determinations for CCRs without following the statutoril y

- required process it followed for issuing those determinations in the first instance. As explained above, the Bevill Amendment requires that, before making any final regulatory determination for CCRs, EPA first must study CCRs pursuant to the eight statut ory study factors and then “publish a report on such study, which shall include appropriate findings.” RCRA section 8002(n). The statute then directs that such “study and findings shall be submitted to the
Committee on Environment and Public Works of the U nited States Senate and the Committee on Energy and Commerce of the United States House of Representatives.” Id . Following submission of the report to the appropriate Congressional Committees, the statute directs EPA to conduct “public hearings and opportu nity for comment [on the report to Congress], and either determine to promulgate regulations” regulating CCRs under RCRA’s Subtitle C hazardous waste regulations “or determine that such regulations are unwarranted.” RCRA § 3001(b)(3)(C). Following this pro cess, EPA was directed to publish its regulatory determination, “which shall be based on information developed or accumulated pursuant to such study, public hearings and270

comment in the Federal Register accompanied by an explanation and justification of the reasons for it.” Id

. Thus, prior to making any final regulatory determination for CCRs, the statute directs EPA to fully inform Congress of the Agency’s initial recommendation as set forth in the Report to Congress. This is not a mere procedural formality . As Representative Bevill emphasized when introducing his amendment, it was especially critical that EPA not make the final regulatory determination in isolation, but that Congress and relevant federal agencies be involved in the
decision

- making process. 126 Cong. Rec. at 3362. The multi

- step decision

- making process set forth in the Bevill Amendment, including the submission of a Report to Congress, was specifically designed to enable Congress and other federal agencies to “evaluate the basis of the Agency ’s decision, and to address the question of what degree of regulation, if any , is appropriate” and ultimately to ensure that the final Regulatory Determination was consistent with the nation’s “commitment to develop a coherent and consistent policy toward the use of our coal and other energy resources.” Id

. Among other omissions, EPA has not prepared a Report to Congress informing the relevant congressional committees of jurisdiction which provide Congressional oversight in EPA’s Bevill Regulatory Determina tion process that the Agency intends to reverse course and regulate CCRs under RCRA Subtitle C. This is especially egregious given that the Reports to Congress that
EPA did provide to Congress made clear that CCRs do not warrant regulation under RCRA’s
Sub title C hazardous waste program and that, therefore, EPA would not pursue this regulatory path. Now, more than ten years later, EPA is proposing to reverse that decision and issue a new Regulatory Determination for CCRs without explaining its reasoning to Congress as required by the statute, thereby cutting Congress out of the deliberative oversight role it reserved for itself prior to issuance of any final Regulatory Determination by EPA [Footnote 7: In fact, the primary deliberative process that EPA has e ngaged in with other federal agencies was during the Office and Management Budget (“OMB”) interagency review process of the draft proposal delivered to OMB by EPA that would have over turned the Agency’s earlier final Regulatory Determination
where virtual ly all of the federal agencies review the Subtitle C option

– including OMB, CEQ, Corps of Engineers, DOE, DOI (Bureau of Reclamation and Office of Surface Mining) DOT, TVA, and USDA opposed or sharply questions the Subtitle C option.].
The failure of EPA to prepare a Report to Congress outlining fully and comprehensively the Agency’s recommendation to regulate CCRs under RCRA’s hazardous waste program is at odds with the plain language of the statute. This failure deprives Congress of its statutorily

- pres cribed right to be fully informed of any such recommendation so that it can evaluate and respond, as appropriate, to the Agency’s proposed course of action before EPA makes a final Regulatory Determination and develops federal regulations. For example, if EPA had recommended in the Reports to Congress that it did submit to Congress in 1988 and 1999 that the Agency’s recommendation was to regulate CCRs under RCRA Subtitle C, Congress could have informed EPA of its concerns and taken any number of steps, incl uding legislative action, to ensure the final Regulatory Determination was consistent with the “national commitment to develop a coherent and consistent policy toward the use of our coal and other energy resources.” Id

. Indeed, the very purpose of Congres s requiring EPA to submit its Report to Congress was to ensure that any final Regulatory Determination appropriately reflect Congress’ intentions that any regulation of CCRs not discourage the development of coal as one of the national primary
sources of e nergy. This is precisely the type of oversight role that Congress reserves for itself when requiring agencies to submit reports to Congress prior to taking regulatory action. See271

Natural Resources Defense Council, Inc. v. Hodel , 865 F.2d 288, 319 (D.C. Cir . 1988) (“ NRDC
v. Hodel ”) (in explaining Congress’ ability to respond to an agency report required to be submitted to Congress, the Court observed that “[i]t scarcely bears more than passing mention that the most representative branch is not powerless to v indicate its interests or ensure Executive fidelity to Legislative directives.”). Indeed, “congressional reporting statutes are a management tool employed by Congress for its own purposes[.]’“ College Sports Council v. Gov't Accountability Office , 421 F. S upp. 2d 59, 67 (D.D.C. 2006), citing

, NRDC v. Hodel , 865 F.2d at 319) [Footnote 8: See also generally James R. Bowers, “Regulating the Regulators” (1990); Joel D. Aberbach, “Keeping a Watchful Eye: The Politics of Congressional Oversight 132” (1990). For example, Congress can control agency action by writing more detailed legislation, by requiri ng staff investigations or field studies, or through agency reports required by Congress.
See alsoUnited States v. S. Ind. Gas & Elec. Co ., 2002 U.S. Dist. LEXIS 20936 at *14 (S.D. Ind. Oct. 24, 2002) (noting that the purpose of Congress requesting an agen cy to report on a new rule was “was to provide a check on administrative agencies’ power to set policies and essentially legislate without Congressional oversight.”)]. In this case, EPA’s failure to prepare a Report to Congress regarding its proposal to re gulate CCRs under RCRA’s hazardous waste program has completely eviscerated the statutory oversight role that Congress was to have in Bevill
Amendment decision

- making process for CCRs. Further, EPA’s failure to prepare and submit a Report to Congress viol ates the express terms of the statute that any final Regulatory Determination be based on public hearings and comments on the Report to Congress. This requirement is not satisfied by the truncated and amended review of the Bevill Amendment’s statutory stud y factors presented by EPA in this proposal. The language of the statute and its legislative history could not be clearer: the Bevill Amendment provides that, following submission of its Report to Congress and public hearings and comment on the report,
EPA was to publish its regulatory determination “which shall be based on information developed or accumulated pursuant to such study [ i.e. , EPA’s Report to Congress], public hearings and comment in the Federal Register accompanied by an explanation and justif ication of the reasons for it.” RCRA § 3001(b)(3)(C). As the Supreme Court stated in National Railroad Passenger Corp. v. National Association of Railroad Passengers (Amtrak), “[w]hen a statute limits a thing to be done in a particular mode, it includes th e negative of any other mode.” 414 U.S. 453, 458 (1974). Thus, even assuming EPA was authorized to render a new and revised Regulatory Determination, such determination must be preceded and predicated on a new Report to Congress. Even EPA has recognized t hat the any final Regulatory Determination must be predicated on the Report to Congress. See 75 Fed. Reg. at 35151 (explaining that EPA addressed the Bevill statutory study factors for CCRs in the 1988 and 1999 Reports to Congress and “[t]he findings of th ese two Reports to Congress were the basis for our decisions in the August 1993 and May 2000 Regulatory Determinations to maintain the Bevill exemption for CCRs.”). Representative Bevill underscored the point that the public hearing and comment process was intended to directly respond to EPA’s Report to Congress and that any final Regulatory Determination was to be based on the information resulting from that process: “Finally, let me
direct the House’s attention to the fact that after EPA concludes these s tudies, it will be required to obtain public views on them and to make known whether, as a result of this process, EPA believes any regulation of these materials is necessary.” 125 Cong. Rec. 3362 (emphasis added). Consistent with the plain language of the statute and the accompanying legislative history, the D.C. Circuit has expressly held that the final Regulatory Determination be based on EPA’s272

Report to Congress. SeeEDF v. EPA , 852 F.2d at 1314) (“The statute clearly states that the agency is to base it s regulatory determination on the information gathered for the § 8002(p) study”) [Footnote 9: The Section 8002(p) study refers to the EPA’s Report to Congress on certain mining wastes that also were subject to the Bevill Amendment. Importantly though, the D.C. Circuit’s decision is equally applicable to CCRs, as the statutory process for EPA issuing a final Regulatory Determination for mining wastes and CCRs is identical. See § RCRA 3001(b)(3)(C) (referencing both the CCR § 8002(n) study and mining waste § 8002(p) study)]. Here, of course, there is no Report to Congress recommending that CCRs be regulated under RCRA Subtitle C. In fact, the Reports to Congress that EPA did submit reached just the opposite conclusion. EPA may believe that its abbreviated revi ew of the Bevill statutory factors in the proposed rule is the functional equivalent to preparing and submitting a Report to Congress, but the Agency’s view is flawed for at least two reasons. First, such a position would be at direct odds with the plain l anguage of the statute, which expressly commands that any final Regulatory Determination be based on the Report to Congress. Congress included this requirement in the Bevill Amendment to ensure that EPA fully and comprehensively explain its reasoning to
Co ngress and that Congress have an oversight role in EPA’s issuance of the final Regulatory
Determination. Second, the statute does not authorize the Agency to collapse the Bevill Amendment’s statutory
decision

- making process into the more abbreviated exerci se the Agency is undertaking here by combining a proposed reversal of its early final Regulatory Determinations with the proposed development of Subtitle C regulations for CCRs. As EPA candidly admits, the end result would
be the issuance of a new final Re gulatory Determination calling for Subtitle C regulation simultaneous with the issuance of the final Subtitle C regulations. This ignores the plain language and purpose of the Bevill Amendment. Section 3001(b)(3)(C) of RCRA provides, in pertinent part, tha t after issuing and obtaining public input on its Report to Congress, EPA is to “either determine to promulgate regulations” for CCRs under RCRA Subtitle C “or determine that such regulations are unwarranted.” The Agency was then directed to publish its fi nal determination in the Federal Register. Id . As the D.C. Circuit has explained, the text of the Bevill Amendment juxtaposes the terms ‘determination]’ and ‘regulation[],’ . . . signifying that, consistent with the principle that effect must be given to e ach word of a statute, the two terms were intended to have distinct meanings.”
American Portland Cement Alliance v. EPA , 101 F.3d 772, 775 (D.C. Cir. 1996). Given this distinction, the sequence of actions directed by Section 3001(b)(3)(C) makes clear that the regulatory determination

– whether or not to regulate CCRs under Subtitle C

– was to be a separate and distinct step from the subsequent promulgation of any such regulations. This step

wise process is consistent with Congress’ directive to EPA, as refl ected throughout the Bevill Amendment’s legislative history, the Agency was to employ a more deliberative, sequential process that involved public and congressional input on whether and how EPA should regulate CCRs in the first instance. Only after the Reg ulatory Determination has been issued does the statute contemplate EPA undertaking any appropriate rulemakings based on the Determination. For all the above reasons, even assuming EPA had the authority to revisit and reverse its final Regulatory Determina tion for CCRs, the Agency’s proposed Subtitle C option does not comport with the statutory process that Congress demanded EPA adhere to in determining whether and how to regulate CCRs under RCRA Subtitle C. At a minimum, EPA must conduct thorough
studies d emonstrating a clear need for regulation; provide to Congress a report detailing its findings on those studies; conduct public hearings and solicit comments on that Report to273

Congress, issue a final determination based on the report to Congress and public comment on that report regarding whether and how to regulate CCRs under RCRA. Congress did not painstakingly craft such mechanisms into the statute for its own amusement, and EPA is not at liberty to ignore such clear congressional intent

Response: The A gency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08241

- 4 

### Organization 1 

### : Revolutionary Plastics, LLC 

### Commenter 1 : Steven G. Barringer and Tasha M. Newland, Holland & Hart LLP, on behalf of Revolutionary Plastics Commenter Type: Beneficial User
Classification: Substantive Comment Catego ry: Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.1 

### Comment Excerpt Text:

IV. EPA DOES NOT HAVE LEGAL AUTHORITY TO PROMULGATE THE PROPOSED
RULE

EPA’s proposed rule would do something EPA has never done before: it would revoke Bevill Amendment status for wastes that EPA has already studied, and for which EPA has already determined that Subtitle C hazardous waste regulation was inappropriate. EPA’s proposal is a misreading of its legal authority under RCRA. Significantly, in previous ru lemakings and in the D.C. Circuit Court of Appeals, EPA argued against the very position it takes now. [Footnote 24: See 54 Fed. Reg. 36,592 (September 1, 1989) (preamble to final mineral processing rule); 54 Fed. Reg. 15,316 (April 17, 1989) (preamble to revised proposed mineral processing rule); 53 Fed. Reg. 41,288 (October 20, 1988) (preamble to proposed mineral processing rule); Solite Corp. v. EPA, 952 F.2d 473 (D.C. Cir. 1991); see also discussion at pages 15

- 18 below.] However, in the preamble to the proposed rule, EPA neither acknowledges nor justifies its about

face. EPA’s failure to explain this change is by itself fatal to the proposed rulemaking.

EPA’s only justification for proposing to revoke the Bevill

- exempt status of these wastes is a
refe rence to the May 2000 Regulatory Determination in which EPA stated the Agency would continue to review the issues, and would reconsider its decision that Subtitle C regulations were unwarranted based on a number of specifically identified factors, and that such reconsideration could result in a subsequent revision to the Regulatory Determination. [Footnote 25: 75 Fed. Reg. at 35,137.] However, neither the 2000 Regulatory Determination nor the proposed rule present any justification or support for EPA’s asse rtion that it has the legal authority to continually revisit Bevill determinations. Furthermore, EPA’s statement in the May 2000 Regulatory Determination is similar to other statements EPA has made in other RCRA274

rulemakings and is essentially just a place

- saver for future action. Finally, EPA’s statement in the 2000 Regulatory Determination and EPA’s proposed rule are both contradictory to EPA’s prior position in Solite Corp. v. EPA [Footnote 26: 952 F.2d 473 (D.C. Cir. 1991).], as discussed more fully belo w.

A. The Bevill Amendment provides EPA Limited and One

- Time Authority to Study and Determine the Appropriate Regulatory Scheme for CCRs

The idea for the substance of the Bevill Amendment came from EPA itself. When EPA first proposed RCRA Subtitle C re gulations in 1978, it solicited comments on a flexible alternative regulatory scheme for large

- volume/low toxicity solid wastes, or “special wastes,” including CCRs. [Footnote 27: 43 Fed. Reg. 58,946, 59,015 (December 18, 1978).] By 1980, however,
when the RCRA rules were promulgated, EPA had decided the special waste concept was unnecessary. [Footnote 28: 45 Fed. Reg. 33,084 (May 19, 1980). ] Special waste generators sought help from Congress, and Congress enacted the Bevill Amendment in October 1980, just before the RCRA rules became effective. [Footnote 29: Pub. L. No. 96

- 482, codified at 42 U.S.C. §§ 6921(b)(3)(A), 6982(n) (study requirements for CCRs). The legislation is referred to as the Bevill Amendment because it was sponsored in the House of Repres entatives by Rep. Thomas Bevill of Alabama.]

For CCRs (and for the other “special wastes”), the Bevill Amendment required EPA to undertake a “detailed and comprehensive study” of the wastes and to prepare and submit a Report to Congress presenting the co nclusions of the study. [Footnote 30: Id] EPA was supposed to complete the CCR Report by October 21, 1982.[Footnote 31: As EPA acknowledges in the preamble, it missed this deadline. EPA subsequently prepared two CCR studies, and two regulatory determinatio ns, in compliance with court

- ordered deadlines. In both cases, EPA determined that Subtitle C regulation was not warranted, and announced that it would promulgate national management standards for CCRs under RCRA Subtitle D. 75 Fed. Reg. at 35,137. However , EPA never proposed or adopted any Subtitle D standards.] Then, based on the study results, and after public meetings and opportunity to comment, EPA was to make a “regulatory determination,” deciding whether Subtitle C hazardous waste regulation of CCRs was warranted. Meanwhile, the Bevill Amendment provided a temporary exemption from RCRA Subtitle C regulation for CCRs, until at least six months after EPA completed the required study, report to congress and regulatory determination. [Footnote 32: 42 U.S. C. § 6921(b)(3)(A)(i).]

A common

- sense reading of these statutory provisions compels the conclusion that they describe

a one

- time study and regulatory decision making process. Congress ordered EPA to undertake a study and determine how to regulate “speci al wastes,” and it provided a temporary exemption from RCRA requirements until these actions were complete. There is no hint in the statute that Congress intended for EPA to revisit Bevill determinations periodically, or ever, for that matter.
The Bevill A mendment instead was a fix to what Congress adjudged to be regulatory overreaching on EPA’s part.

B. EPA Itself has interpreted the Bevill Amendment as a “One

- Time” Congressional Authority

In fact, it is not necessary to apply statutory construction pr inciples, to parse the legislative275

history, or to guess what Congress meant when it adopted the Bevill Amendment. In the past, EPA has clearly and repeatedly interpreted the Bevill Amendment as a one

- time grant of authority. Before the Agency can take acti on on the proposed rule, it must, at a minimum, disclose this regulatory record and offer justification for departing from it.

In 1988, EPA proposed to limit the scope of the Bevill Amendment as it applied to “mineral processing wastes.” [Footnote 33: 53 Fed. Reg. 41,288 (October 20, 1988).] In the preamble to a revised proposed rule, published in April 1989, EPA responded to comments that it should be prepared to undertake Bevill studies and make regulatory determinations on mineral processing
wastes tha t might be generated in the future:

Both the administrative record and congressional intent clearly indicate that the Bevill Amendment was intended to provide a temporary exclusion, pending further study, over a fixed time period. Congress directed EPA t o conduct a single study of wastes generated by mineral mining and processing facilities, because of concern that existing wastes might not be readily amenable to Subtitle C controls and might pose relatively low hazard to human health and the
environment. Moreover, contrary to some commenters’ assertions, the statutory language includes explicit time limits on the Bevill exclusion, which apply to the submission of the required Report to Congress and subsequent regulatory determination. [Footnote 34: 54 Fed

. Reg. at 15,338.]

EPA reiterated its position on this subject in the preamble to the final rule. [Footnote 35: 54 Fed. Reg. 36,592 (Sept. 1, 1989).] The statutory language applicable to CCRs is identical in all significant respects to the language gover ning the Bevill study of mineral processing wastes.

The final mineral processing rule

– including EPA’s position about the one

- time nature of its Bevill authority

– was challenged in Solite Corp. v. EPA. [Footnote 36: 952 F.2d 473 (D.C. Cir. 1991).] EPA continued to argue to the court that its Bevill authority was limited to a one

- time study and determination of Bevill status:

This decision followed from EPA’s reading of congressional intent based on the statutory language and scheme of sections 3001(b) (3) and 8002(p) of RCRA, which establish a temporary exclusion for a fixed period of time and which fail to expressly impose a continuing obligation to study new waste streams. EPA’s construction was also based on other indicia, such as the strict

statutor y time periods governing the mineral processing waste exclusion ... in RCRA. [citations omitted]. From this evidence of congressional intent, EPA reasonably determined that Congress
authorized EPA to make a one

- time interpretation or snapshot of mineral proc essing wastes, rather than a continuing series of studies and regulatory determinations.... [Footnote 37: Respondent’s Brief, Solite v. EPA, at 68 (May 8, 1991).]

The Solite court agreed, concluding:

The statutory provision directing EPA to study Bevill w astes suggests by its terms that a one

time study is sufficient. ...

In any event, this court’s holding in [Environmental Defense Fund v. EPA, 852 F.2d 1316, (D.C.276

Cir. 1988)] secures EPA’s position that a one

- time determination is sufficient. There we
int erpreted the Bevill Amendment as an exclusion specifically for “the category of wastes designated as ‘special wastes [] ... in EPA’s 1978 proposed hazardous waste regulations.” [citations omitted]. While we did not go so far as to foreclose Bevill status for a future waste that might satisfy a pre

- set criterion, we clearly enough rejected the theory that Congress intended the coverage of the Bevill exclusion to evolve with time. [Footnote 38: 953 F.2d at 491.]

The most notable aspect of the history cited ab ove is that EPA nowhere mentions it in the proposed rulemaking. Yet, it is inescapable that EPA’s current position is irreconcilable with its past interpretation of the statute. EPA does nothing in the proposed rule to come to terms with
these inconsistenc ies.

EPA

– in justification of its current proposal

– may not simply argue that the past interpretation was in a preamble, was at the most guidance, and does not bind the Agency. The regulatory scope of the mineral processing rule is based on what EPA ma intained in the Solite litigation was its expert legal interpretation of its responsibilities under the Bevill Amendment. EPA maintained the legal position in court and won. It will not do now for EPA to entirely ignore its past pronouncements on this issu e, as if they never happened. [Footnote 39: See Williams Gas Processing

- Gulf Coast Co. v. Federal Energy Regulatory Commission, 475 F.3d 319, 326 (D.C. Cir. 2006) (noting that “[r]easoned decisionmaking necessarily requires consideration of relevant preced ent” and “agency action must either be consistent with prior action or offer a reasoned basis for its departure from precedent” (citations omitted); Mobile Oil Corp. v. Environmental Protection Agency, 871 F.2d 149 (D.C. Cir. 1989) (holding that EPA’s regu latory approach represented a change in agency policy, but that EPA acknowledged that change and cogently explained the reasons for it). ]

EPA also may not find justification in a narrow reading of the Solite court’s opinion. It is true
that the court he ld only that EPA could decide only to conduct a single Bevill study for mineral processing wastes. However, EPA argued much more than that in its submissions to the court: EPA took the position that Congress only gave it the authority to make Bevill determ inations once. In dicta interspersed with its holding, the court agreed, suggesting that EPA’s reading of
the Bevill Amendment as limited to a one

- time exercise was a reasonable one. [Footnote 40: 952 F.2d at 491.] EPA now has an obligation to explain thes e past pronouncements and to justify its departure from this interpretation of its Bevill Amendment authority.

C. Even if EPA Had Authority to Revisit Its Bevill Determination on CCRs, It Has Failed to Conduct the Required Bevill Study

Even if EPA had the authority it claims to revisit Bevill determinations, it would have to do so in compliance with the terms of the Bevill Amendment. As already explained above, the first (and mandatory) step of the Bevill Amendment is to conduct a detailed and comprehen sive study of the exempt wastes. EPA has not conducted the study, and cannot list CCRs as hazardous wastes until it complies with that requirement and the other requirements of the Bevill Amendment.

EPA does not address this failure, and neglects even to mention the study requirement as a prerequisite to any decision to revoke Bevill

- exempt status. But the requirement is clear, and277

stands in the way of EPA’s proposed CCR listing.

EPA’s proposed rule does not satisfy the Bevill study requirement. As expl ained above, RCRA requires a detailed and comprehensive study, and provides a list of eight study factors that must be addressed. [Footnote 41: See Section I.V.A., above.] In the Proposed Rule, EPA discusses each of the eight Section 8002(n) study factors and evaluates them based on the data on which it made the May 2000 Regulatory Determination “as well as the most recent data available.” [Footnote 42: 75 Fed. Reg. at 35,151.] However, this analysis does not meet the statutory requirement to “conduct a det ailed and comprehensive study and submit a report on the adverse effects on human health and the environment, if any, ... to the Committee on Environment and Public Works of the United States Senate and the Committee on Energy and Commerce of the
United Stat es House of Representatives.” [Footnote 43: 42 U.S.C. § 6982(n).] If EPA wishes to revise its analysis of the eight study factors with regard to whether to regulate CCWs under Subtitle C, it must comply with the statutory duty to prepare a revised Report t o Congress.

EPA does acknowledge the study factors in the preamble (but not the requirement to conduct a new study), and notes that it will carefully consider all comments submitted in response to the proposed rule. [Footnote 44: 75 Fed. Reg. at 35,133.] At best, this amounts to no more than lip service to the study requirement. Asking for comment in a rulemaking process is not equivalent to the active undertaking of a “detailed and comprehensive study,” as the statute requires. Otherwise, the quality and completeness of EPA’s study would depend entirely on the comments submitted by stakeholders. This passive approach is certainly not what Congress intended for EPA to do to satisfy the Bevill study requirement.

EPA also cannot claim that the ongoing rese arch being conducted by EPA’s ORD satisfies the Bevill study requirement. First and foremost, the four ORD studies are not complete, as EPA acknowledges. [Footnote 45: Id. at 35,139.] EPA describes the ORD research as “ongoing.” [Footnote 46: Id] Furthermo re, EPA notes that the research conducted to date has generated a substantial amount of data and that such data “can be useful as a reference for assessing additional CCR samples in the future.” [Footnote 47: Id] The database containing the full dataset
is presented as a “Beta” version, and may be further developed. [Footnote 48: Id] Even if the studies were completed, they would not fulfill the Bevill study requirements EPA must meet before it reverses a Bevill determination because the reports produced to date do not address all of the study factors required by statute.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under

subtitle D o f RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are ou tside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08244

- 2 

### Organization 1 

### : Edison Mission Energy, LLC 

### Commenter 1 : Basil G. Constantelos Commenter Type: Electric Utility Company278

Classification: Substantive
Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.1 

### Comment Excerpt Text: A. EPA Must Satisfy Both The Bevill Amendment And Regulatory Standards For Subjecting A Solid Waste (Or Category Of Solid Wastes) To Subtitle C’s Requireme nts EPA suggests in the Proposed Rule that it is not proposing to regulate CCRs as hazardous waste because it is not going to call them hazardous, but rather is going to create a new category of “Special Wastes” that will erase all of the stigma associated with a hazardous waste listing decision. This justification defies logic and is purely an exercise in semantics. It is common knowledge that the express purpose of RCRA Subtitle C is to regulate hazardous waste, as evidenced by its title

– “Hazardous Wast e Management.”[Footnote 7: See Title 42 (“The Public Health and Welfare”), Chapter 82 (“Solid Waste Disposal”), Subchapter III (“Hazardous Waste Management”).] Thus, regardless of the name assigned to a specific waste (or group of wastes), a
decision to re gulate such material under Subtitle C is predicated on an EPA determination that those wastes satisfy RCRA’s definition of hazardous waste [Footnote 8: 42 U.S.C. § 6921(b).]. EME submits, for the reasons set forth below, that EPA’s proposal has not satisfi ed this requirement. The Bevill Amendment factors supplement the RCRA hazardous waste criteria, and EPA must satisfy both standards before listing CCRs destined for disposal as a hazardous waste under Subtitle C. While the Proposed Rule briefly attempts to explain why CCRs as a group satisfy the requirements of 40 C.F.R. § 260.11 for subjecting a waste to RCRA Subtitle C,[Footnote 9: 75 Fed. Reg. at 35,166

- 73.] EPA devotes a large portion of the preamble to explaining the Agency’s reconsideration of its pri or Bevill determinations for CCRs, which suggests a belief by the Agency that the Bevill factors are somehow the only standard determinative of whether CCRs should be listed under Subtitle C [Footnote 10: Id. at 35149

- 66 (discussion of the Agency’s
Bevill determination). EPA dedicated approximately 18 pages to its discussion of the Bevill determination, but only 8 pages to its discussion of the criteria for listing CCRs as a “special waste.” Compare id. at 35,149

- 66 with id. at 35,166

- 73.]. To the extent it is the Agency’s conclusion that the Bevill Amendment supplants the criteria for regulating CCRs under Subtitle C, that belief is misplaced and contrary to RCRA and the applicable regulations. In order to be subject to the requirements of Subtitle C, a sol id waste must satisfy the criteria for listing as a “hazardous waste” as that term is defined by the statute and regulations [Footnote 11: 42 U.S.C. § 6921, et seq.; 40 C.F.R. § 261.1]. The criteria for determining whether a solid waste
is a hazardous wast e include “toxicity, persistence, and degradability in nature, potential for accumulation in tissue, and other related factors such as flammability, corrosiveness, and other hazardous characteristics.”[Footnote 12: 42 U.S.C. § 6921(a); 40 C.F.R. § 260.11.] . If a solid waste is not a hazardous waste, then it can only be subject to Subtitle D’s requirements. Congress did not eliminate that requirement when it modified RCRA in 1980 with the Bevill
Amendment

— it supplemented that requirement with the Bevill fact ors. The Bevill Amendment revised Subtitle C to expressly prohibit the regulation of “fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels”[Footnote 13: 42 U. S.C. § 6921(b)(3)(A) (these CCR wastes are not subject to regulation as a hazardous waste “until at least six months after the date of submission of the applicable study required to be conducted under [section 8002(n)] . . . .”).]279

until after completion of a study by EPA considering the “adverse effects on human health and the environment, if any, of the disposal and utilization of fly ash waste, bottom ash waste, slag waste, flue gas emission control waste, and other byproduct materials generated primarily from the combustion of coal or other fossil fuels.”[Footnote 14: Id. § 6982(n). This study must include an analysis of: “(1) the source and volumes of such material generated per year; (2) present disposal and utilization practices; (3) potential danger, if any, to human health and the environment from the disposal and reuse of such materials; (4) documented cases in which danger to human health or the environment from surface runoff or leachate has been proved; (5) alternatives to current disposal methods ; (6) the costs of such alternatives: (7) the impact of those alternatives on the use of coal and other natural resources; and (8) the current and potential utilization of such materials.” Id.] However, that study alone is not sufficient to justify a CCR
l isting, but rather EPA must satisfy both the Bevill Amendment requirements and the Administrator must still make the applicable RCRA hazardous waste regulatory determinations

– i.e., do the waste products at issue satisfy the criteria for identification an d listing as hazardous

waste

— to subject those wastes to regulation as hazardous wastes under Subtitle C.[Footnote 15: Id. § 6921(b)(3)(A), (C) (“Not later than six months after the date of submission of the applicable study . . . the Administrator shall, a fter public hearings and opportunity for comment, either determine to promulgate regulations under this subtitle for each waste listed in subparagraph (A) of this paragraph or determine that such regulations are unwarranted. The Administrator shall publish his determination, which shall be based on information developed or accumulated pursuant to such study, public hearings, and comment, in the Federal Register accompanied by an explanation and justification of the reasons for it.”). The statute also provid es that if the Administrator decides to list CCRs as hazardous waste, the Administrator may modify some of the requirements to account for the special characteristics of these wastes. Under 42 U.S.C. § 6924(x) if the Administrator determines to regulate CC Rs under Subtitle C, “the Administrator is authorized to modify the requirements of subsections (c), (d), (e), (f), (g), (o) and (u) and section 3005(j), in the case of landfills or surface impoundments receiving such solid waste, to take into account the special characteristics of such wastes, the practical difficulties associated with implementation of such requirements, and site

- specific characteristics, including but not limited to the climate, geology, hydrology and soil chemistry at the site, so long as such modified requirements assure protection of human health and the environment.” Significantly, these special provisions governing CCRs described in notes 13 to 15 and accompanying text are in addition to

— not instead of

— the criteria that must be met t o list a substance as hazardous waste.} As Congress explained at the time, the Bevill amendment was motivated by a concern “that EPA may be hastily classifying wastes as hazardous and imposing burdensome costs on businesses without proper or sufficient dat a to support their classification.”[Footnote 16: 126 Cong. Rec. 3361, 3346 (Feb. 20, 1980) (Rep. Traxler

- MI).] Congress was concerned that a hasty decision “to treat these relatively harmless byproducts as special hazardous wastes subject to stringent

re gulation will only hasten the decline of the coal industry” in the U.S.[Footnote 17: Id. at 3361 (Rep. Bevill

- AL).] Motivated by the concerns about maintaining coal as the primary domestic source of energy, reducing reliance on foreign energy sources, an d avoiding unreasonable and burdensome regulatory requirements, Congress imposed the Bevill Amendment’s study requirements on EPA to ensure that the Agency adequately studied CCRs prior to making a determination as to whether they were subject to Subtitle C’s requirements. As Rep. Staggers280

(WV) explained “[t]his amendment continues to subject specified byproducts of fossil fuel combustion, coal mining wastes and other so

- called special wastes to existing regulatory programs under presently applicable Federa l and State laws, but would preclude, until after completion of the required study and rulemaking, any EPA regulation of these wastes under [S]ubtitle C of RCRA.”[Footnote 18: Id. at 3365 (Rep. Staggers

- WV).] Put simply, the Bevill Amendment was designed to force EPA to slow down and take more deliberate action based on sufficient data to support any regulatory action with respect to CCR materials; it did not eliminate the fundamental RCRA requirement that EPA identify those
wastes that are hazardous base d on specific characteristics before subjecting them to Subtitle C. It does not give EPA special authority to circumvent Subtitle C’s requirements through the creation of a new category of “special waste.” As EPA admits “solid wastes may [only] become subj ect to regulation under subtitle C of RCRA in one of two ways...[;] a waste may be subject to regulation if it exhibits certain hazardous properties..., or if EPA has specifically listed the waste as hazardous.”[Footnote 19: 75 Fed. Reg. at 35,135 (internal ci tations omitted).] Thus, just because the Agency wants to call CCRs a “special waste”, it still has to determine whether or not they are hazardous and address the Bevill factors in order to subject them to regulation under Subtitle C; as explained in the s ubsections below, the Agency has not satisfied that requirement substantively or legally

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determinatio n is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08785

- 6 

### Organization 1 

### : USC Technologies, LLC 

### Commenter 1 : Sarah Toevs Sullivan Commenter Type: Beneficial User
Classification: Substantive
Comme nt Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: C. Procedural History Section 300 I(b)(3)(A) of RCRA, known generally as the "Bevill exemption," established a preliminary exemption for fly ash, bottom ash, slag and flue ga s emission control material generated primarily by the combustion of coal or other fossil fuels, and required EPA to conduct a study of those wastes and, after public hearings and an opportunity for comment, determine whether they should be regulated pursu ant to Subtitle C of RCRA. At issue in the Proposed Rule is the retention of this exemption. Section 8002(n) sets forth the requirements for an analysis based on certain enumerated factors, including the current and potential utilization of such
materials. Section 3001(b)(3)(C) of RCRA requires EPA to determine, after public notice and comment, whether to promulgate regulations under Subtitle C or rule that such regulations are unwarranted. Section 3004(x) of RCRA authorizes EPA to tailor certain requiremen ts for281

particular categories of waste, including fly ash, bottom ash generated from the combustion of coal, taking into account the special characteristics of the wastes, the practical difficulties associated with implementation of such requirements, and s ite

- specific characteristics, including but not limited to the climate, geology, hydrology and soil chemistry at the site, so long as such modified requirements assure protection of human health and the environment. In 1993, following litigation and a cons ent decree, EPA published its Regulatory Determination for fly ash, bottom ash, boiler slag and flue gas emission control wastes from the combustion of coal by electric utilities and independent commercial power producers, concluding that regulation under Subtitle C of RCRA was not warranted. In 2000, EPA issued a second Regulatory Determination on large volume coal combustion wastes generated at electric utility and independent power producers, coal combustion wastes generated at non

- utilities, and certain
other fossil

- fuel combustion wastes (the "2000 Determination"). In its 2000 Determination, EPA concluded that the Bevill exemption should be retained for these "remaining wastes." Specifically, EPA stated "we believe, on balance that the best means of ens uring that adequate controls are imposed where needed is to develop national Subtitle D regulations. As we develop and issue the national regulations, we will try to minimize disruptions to operation of existing waste management units." 65 Fed. Reg. 32216. In its determinations, EPA carefully considered and expressly rejected regulations of these wastes under Subtitle C of RCRA, in part in response to concerns that subjecting coal combustion waste to Subtitle C regulation would place a significant stigma on these wastes and would adversely impact beneficial reuse. "We do not wish to place any unnecessary barriers on the beneficial uses of these wastes, because they conserve natural resources, reduce disposal
costs and reduce the total amount of waste destine d for disposal." Id at 32231. Beneficial uses expressly determined by EPA to not warrant Subtitle C regulation included waste stabilization, beneficial construction applications (e.g., cement, concrete, brick and concrete products, road bed, structural fil l, blasting grit, wall board, insulation, roofing materials), and other applications. This decision was supported by EPA's findings that "(a) We have not identified any beneficial uses that are likely to present significant risks to human health or the env ironment; and (b) no documented cases of damage to human health have been identified." Id at 32229. The Proposed Rule reassesses those earlier rulings and presents three alternatives to regulation of CCRs. The first alternative proposes to reverse the Bevi ll exemption for "CCRs from electric utilities and independent power producers when destined for disposal in a landfill or surface impoundment," and to list them as a "special waste." 75 Fed. Reg. 35133/3. Listing CCRs as a "special waste" places them unde r RCRA Subtitle C "cradle to grave" hazardous waste regulations. Id. The second alternative proposes to retain the Bevill exemption for CCRs with additional regulation under RCRA Subtitle 0 for CCRs that are disposed in surface impoundments or
landfills. I d. The proposed Subtitle 0 regulations would subject disposal units to location standards, liner requirements for new and existing impoundments, groundwater monitoring, closure and post

- closure care requirements, and requirements to ensure the stability of surface impoundments. Id at 35133

- 35145. The third alternative, "0 Prime," also proposes to retain the Bevill exemption but with less restrictive regulation under RCRA Subtitle D that would allow existing surface impoundments to continue to operate for th eir useful life without retrofitting. Id.

Response: The Agency acknowledges and appreciates the comment.282



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08844

- 11 

### Organization 1 

### : National Mining Association (NMA) 

### Commenter 1 : Tawny A. Bridgeford Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.6 

### Comment Excerpt Text: B. Even if EPA was Authorized to Reverse its 1993 and 2000 Regulatory Determinations, EPA
has Failed to Comply with the Statutorily

- Mandated Bevill Process

In the proposed rule, EPA states that it "is reevaluating its August 1993 and May 2000 Bevill Regulatory Determinations regarding CCRs generated at electric utilities and independent power producers. " 75 Fed. Reg. at 35,148. Even if EPA had the authority to reverse its August 1993 and May 2000 Bevill Regulatory Determinations, which it does not as demonstrated above, EPA has failed to go through the Bevill process before proposing a reversal of the Be vill Regulatory Determinations, and therefore cannot proceed with its Subtitle C option.

As stated above, the Bevill process as established by Congress must include each of the following steps:

1) EPA must study CCRs pursuant to the eight study factors;

2) EPA must then submit a Report to Congress, i.e., a report on such study and the findings of the study to the House Committee on Energy and Commerce and the Senate Committee on Environment and Public Works; and

3) Following submission of the Report to Congress to the enumerated congressional committees, EPA must conduct public hearings and provide an opportunity for comment on the Report, and then either determine to promulgate regulations under Subtitle C or determine that such regulations are not warr anted.

4) If EPA determined that such regulations were warranted, then engage in a notice and comment regulation to promulgate the regulations.

EPA has failed to comply with this special Bevill process. First, its purported analysis of the eight Bevill study factors as applied to CCRs is insufficient and superficial. Among other things, EPA is explicitly required to evaluate the "costs of alternatives" to current disposal methods. EPA's evaluation of the costs to the industry of the Subtitle C options in the proposed rule is woefully lacking in scope and depth.

Moreover, EPA has not even attempted to argue that it has met the Report to Congress prong of the Bevill process. Prior to EPA's proposal to reverse its 1993 and 2000 Regulatory
Determinations and adopt a Subtitle C approach for CCRs, EPA has not prepared a Report and283

did not submit a Report to the enumerated Congressional committees before proposing to reverse its Regulatory Determinations in the proposed rule.

In addition, EPA's proposal to reve rse its 1993 and 2000 Regulatory Determinations is not based, as explicitly required by statute, on public hearings and public comment on the non

- existent Report to Congress. Therefore, EPA has not met its statutory obligation which conditions any Regulato ry Determination on an evaluation of the results of such public hearings and any comments on the Report to Congress. See EDF, 852 F. 2d. at 1314. ("The statute clearly states that the agency is to base its regulatory determinations on the information gathe red for the § 8002(p) [the extraction, beneficiation and processing waste] study").

The legislative history supports this reading. Representative Bevill, the sponsor of the statutory amendment that bears his name, stated explicitly that any EPA regulatory determination would be based in part on the public hearings and any comments that were submitted on the Report to Congress. "Finally, let me direct the House's attention to the fact that after EPA concludes these studies, it will be required to obtain pub lic views on them and to make known whether as a result of this process EPA believes any regulation of these materials is necessary." 126 Congo Rec. at
3362.

Finally, EPA's proposed rule envisions a decision

- making process involving the simultaneous

rever sal of the prior Regulatory Determination for CCRs, the issuance of a new regulatory determination for CCRs, and the adoption of new Subtitle C regulations for CCRs. This accelerated approach violates the sequential nature of the Bevill process established by Congress, which provided for a regulatory determination to be followed at a later time by subsequent issuance of regulations.

To the extent EPA is authorized to reverse its 1993 and 2000 Regulatory Determinations, it cannot do so without complying wit h the statutorily mandated Bevill process. EPA's failure to do so prevents it from proceeding with the Subtitle C option.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preamble for a discus sion on our decision to regulate CCR under
subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedur es by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09346

- 2 

### Organization 1 

### : American Public Power Association (APPA) 

### Commenter 1 : Theresa Pugh Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:284



### Comment Excerpt Text: EPA's proposal to regulate CCRs under Subtitle C of RCRA is subjective and in direct contravention of the Bevill Amendment. In 1980, Congress amended,the Resource Conservation and Recovery Act (RCRA) with the passage of the Bevill Amendment to ensure that EPA would not inappropriately subject CCRs to hazardous waste regulation under Subtitle C of RCRA. Congress reasonably anticipated that such regulation would discourage the development of coal as one of the nation's primary sources of energy. The amendment , sponsored by Representative Tom Bevill of Alabama, was intended to avoid the excessive costs associated with Subtitle C regulation of CCRs and to promote beneficial coal utilization. Representative Bevill explained
that the amendment was intended to "enc ourage development of coal as a primary domestic source of energy [and] avoid unnecessary inflationary impact." 126 Cong. Rec. 3361 (1980).

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09633

- 2 

### Organization 1 

### : Waterkeeper Alliance 

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



### Comment Excerpt Text:

I. THE LANGUAGE AND LEGISLATIVE HISTORY OF RCRA COMPELS REGULATION
OF COAL ASH UNDER SUBTITLE C

A. Overarching Purpose and Goals of RCRA

In response to the billions of tons of waste generated and disposed of in the U.S. each year, as well as the irresp onsibility of industry in managing that waste, Congress passed the Resource Conservation and Recovery Act in 1976. The main thrust of this critical piece of legislation is to protect human health and the environment from the substantial dangers posed by ha zardous waste by regulating how such waste is to be properly managed and stored. This is obvious from the plain language of the statute. Section 6902(a) states outright that a main objective of RCRA is “...to promote the protection of health and the enviro nment...[.]” [Footnote 1: RCRA § 6902(a); See also Meghrig v. KFC W., Inc., 516 U.S. 479, 483, 116 S. Ct. 1251, 1254, 134 L. Ed. 2d 121 (1996) (“RCRA's primary purpose, rather, is to reduce the generation of hazardous waste and to ensure the proper treatme nt, storage, and disposal of that waste which is nonetheless generated, ‘so as to minimize the present and future threat to human health and the environment.’) (quoting 42 U.S.C. § 6902(b))] The statute proposed to do this by, among other things, forbiddin g future open dumping on land, requiring that existing open dumps be retrofitted so that they no longer pose a threat to human health or the environment, and by regulating hazardous wastes from cradle to grave in a manner which “...protects human health an d the environment.” [Footnote 2: RCRA § 6902(a)(3) and (4)] In fact, Congress specifically stated that its intent in passing RCRA was to send “...a clear and unambiguous message to the regulated community and the Environmental Protection Agency: reliance o n land disposal of hazardous285

waste has resulted in an unacceptable risk to human health and the environment.” [Footnote 3: H.R. Conf. Rep. 98

- 1133 (p. 3)] Congress went on to note that, therefore, “[l]and disposal should be used only as a last resort and o nly under conditions which are fully protective of human health and the environment.” [Footnote 4: H.R. Conf. Rep. 98

- 1133 (p. 3)]

Congress’ disdain for land disposal of hazardous waste is reflected throughout the statutory language of RCRA. In particula r, Congress found that “...open dumping is particularly harmful to health, contaminates drinking water from underground and surface supplies, and pollutes the air and the land...[.]” [Footnote 5: RCRA § 6901(b)(4)] Furthermore, the statute notes that, “... the placement of inadequate controls on hazardous waste management will result in substantial risks to human health and the environment...[.]” (emphasis added) To remedy these and other concerns, RCRA mandates that EPA set such standards for the proper man agement of hazardous waste “...as may be necessary to protect human health and the environment.” [Footnote 6: RCRA §§ 6922(a), 6923(a), 6924(a)] Nowhere does the statute mention that EPA, in promulgating the rules setting out these standards, need consider the costs and benefits that would attach from their implementation.

In addition, Congress pointedly mentions twice within RCRA the desirability of disposing of hazardous waste properly in the first place, rather than relying on corrective action later o n, after significant damage has already been done. [Footnote 7: RCRA §§ 6901(b)(6) and 6902(a)(5]) This language gives effect to the precautionary nature of RCRA

-- namely, that it is cheaper, easier, and overall a more preferable policy to provide for safe management of hazardous materials at the outset than it is to clean up the mess after an environmental catastrophe.

B. The Bevill Amendment

Unfortunately, with more than 400 landfills, 629 ponds, and 750 inactive dumps currently containing coal ash, not to mention hundreds of both active and abandoned mines, [Footnote 8: Coal Ash: The toxic threat to our health and environment, Report from Physicians for Social Responsibility and Earthjustice, by Barbara Gottlieb with Steven G. Gilbert and Lisa Gollin
Ev ans, September 2010, p. vis] Congress’ desire to curtail “open dumping” has gone long unfulfilled when it comes to this particular hazardous waste. With the 1980 Bevill Amendment, and as a favor to the Alabama coal industry, Representative Tom Bevill decla red that "it would be unreasonable for EPA to impose costly and burdensome regulatory requirements without knowing if a problem really exists, and if it does, the true nature of that problem."

While the Bevill Amendment to RCRA initially acted to shield coal combustion residuals from regulation, there is nothing in the statute or the legislative history of RCRA that requires, or justifies, doing so now. In introducing his Amendment, Rep. Bevill described the importance of “meaningful regulation” in dealin g with hazardous substances that threaten communities and the surrounding environment, emphasizing that the Amendment would not act as a limitation on such regulation. [Footnote 9: Congressional Record, 126 Cong. Rec. 3361 (February 20, 1980) (check p. #)] The court in EDF v. EPA interpreted this and other similar language as confirmation of Congress’ intention that, in the case of hazardous Bevill wastes, the need for regulation should be evaluated according to the “actual risk” posed by the waste at issue

. [Footnote 10: Envtl. Def. Fund v. U.S.E.P.A., 852 F.2d 1309, 1314

- 15 (D.C. Cir. 1988)] The286

court explained that with the Bevill Amendment, Congress was in effect directing EPA to engage
in a context

- specific analysis. [Footnote 11: Envtl. Def. Fund v. U. S.E.P.A., 852 F.2d 1309, 1314 (D.C. Cir. 1988)] In other words, a finding of hazardousness for a Bevill waste (of which CCRs are one) necessarily turns on whether that particular waste poses a danger to human health or the environment in a particular situa tion.

The dangers to human health and the environment resulting from exposure to coal combustion residuals are legion and well

- documented, as discussed more fully below. Not only risks, but also actual damages, have been proven in numerous cases, represe nting a variety of situations. [Footnote 12: See EPA’s Preamble to the Rule and also Environmental Integrity Project Study] While Congress may not have been certain at the time of the hazardousness of coal ash, there is absolutely no question today, not on ly that such hazards exist, but also that they cannot be ignored. To do so means turning a blind eye to overwhelming scientific and anecdotal evidence of the hazardousness of coal ash. Congress clearly did not intend such a result. EPA’s own
scientific fin dings, not to mention many other studies, show that coal ash poses a real and actual risk to human health and the environment, one that threatens our communities and natural

resources.

Clearly, thirty years later, with the undeniable impacts of coal ash on our water sources and communities, the “true nature of the problem” could not now be more self

- evident; the time to responsibly regulate coal ash has arrived.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09885

- 1 

### Organization 1 

### : Progress Energy, Inc. 

### Commenter 1 : Caroline Choi Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.2 

### Comment Excerpt Text: EPA cannot promulgate Subtitle C regulations for coal combustion residuals Requirements of the
Bevill amendment

The Be vill amendment to RCRA was an outgrowth of Congress’ concern that EPA might discourage the development of coal as one of the nation’s primary sources of energy if it prematurely and inappropriately subjected CCRs to regulation under Subtitle C of RCRA. The enacted Bevill amendment ultimately incorporated congressional policy directives into RCRA by first suspending EPA’s authority to regulate CCRs under Subtitle C of RCRA until EPA completed a study to determine whether such regulation was warranted. To ens ure that all relevant information was available to the agency and to avoid duplication of effort, Congress specifically directed EPA to “review studies and other actions of other Federal and State287

agencies ... and invite participation by other concerned pa rties, including industry and other Federal and State agencies.” Within six months following completion of the study and a report to Congress on the agency’s findings, EPA was required to make a final regulatory determination whether to subject to Subtitle C regulation the CCRs addressed in the study and report to Congress, or determine that Subtitle C regulation of these wastes is not warranted. The Bevill amendment required the Agency to base this final regulatory determination “on information developed o r accumulated pursuant to such study, public hearings, and comment...”

It is important to appreciate that Congress was particularly concerned that EPA not make this decision in a vacuum. To that end, Congress emphasized that the Agency was to seek the
assis tance and cooperation of those with expertise in the field including “other agencies of Government that are aware of the role coal plays in our national energy policy, or of actual disposal and utilization practices.” These included the Departments of Agri culture, Commerce, Energy and Interior, as well as the Federal Highway Administration. The input of these federal agencies to assist EPA in reaching a final regulatory determination was a critical component of the Bevill amendment; it was important to Cong ress that the final determination reflects “a cooperative, informed effort” that met the nation’s energy goals.

Also of critical importance to Congress was the Bevill amendment’s decision

- making process; these provisions reflect Congress’ intent that EPA reach all final decisions in a transparent manner that provides the public and Congress with an opportunity to determine whether any decision to regulate CCRs under RCRA Subtitle C was appropriate. In short, EPA could only reach the decision to regulate CC Rs under Subtitle C after following a statutorily

- prescribed series of steps. The Bevill amendment reflects Congress’ express intent that any regulation of CCRs under RCRA not unduly impede the nation’s use of coal. It addressed this concern by cautioning EPA not to impose unnecessary and costly regulations on those industries that use coal to produce electricity for the nation. It also reflects Congress’ concern that regulating CCRs under RCRA Subtitle C would discourage, and perhaps end, CCR beneficial us e. EPA completed its statutory obligation under the Bevill amendment in May 2000, when the agency issued its final Regulatory Determination concluding that CCRs do not warrant regulation under Subtitle C of RCRA. EPA published its first Report to Congress on March 8, 1988, concluding that large volume coal combustion waste streams generally do not exhibit hazardous characteristics under current RCRA regulations, and therefore “EPA does not intend to regulate under [RCRA] Subtitle C fly ash, bottom ash, boil er slag, and flue gas desulfurization wastes.” The 1988 Report to Congress also encouraged the utilization of coal combustion wastes to the extent such utilization can be done in an environmentally safe manner

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09885

- 4 

### Organization 1 

### : Progress Energy, Inc. 

### Commenter 1 : Caroline Choi Commenter Type: Electric Utility Company
Classification: Substantive288

Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.6 

### Comment Excerpt Text:

EPA has failed to adhere to th e Bevill amendment’s prescribed process

Even assuming that RCRA could be read as authorizing EPA to reverse its final Regulatory Determination for CCRs, the agency would have to adhere to the statutorilyprescribed procedures that Congress demanded EPA fol low in determining whether and how to regulate CCRs. EPA has strayed beyond the plain language of the statute by proposing to reverse its final Regulatory Determinations for CCRs without following the statutorily

- required process it followed for issuing th ose determinations in the first instance. The agency’s proposed Subtitle C option does not comport with the process that Congress demanded EPA adhere to in determining whether and how to regulate CCRs under RCRA Subtitle C. At a minimum, EPA must conduct

t horough studies demonstrating a clear need for regulation; provide Congress a report detailing its findings on those studies; conduct public hearings and solicit comments on that report to Congress; issue a final determination based on the report to Congress and provide an opportunity for public comment on that report regarding whether and how to regulate CCRs under RCRA.

Prior to making any final regulatory determination for CCRs, the statute directs EPA to fully inform Congress of the Agency’s init ial recommendation. This is not a mere procedural formality. As Representative Bevill emphasized when introducing his amendment, it was especially critical that EPA not make the final regulatory determination in isolation, but that Congress and relevant fe deral agencies be involved in the decision

- making process. The failure of EPA to prepare a report to Congress outlining fully and comprehensively the Agency’s recommendation to regulate CCRs under RCRA’s hazardous waste program is at odds with the plain la nguage of the statute. This failure deprives Congress of its statutorily

- prescribed right to be fully informed of any such recommendation so that it can evaluate and respond, as appropriate, to the Agency’s proposed course of action before EPA makes a fina l regulatory determination and develops federal regulations

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside t he scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 1 

### 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:289



### Comment Excerpt Text: A. The Legislative History Of The Bevill Amendment

The Bevill Amendment to RCRA, enacted in 1980, was an outgrowth of Congress‘s concern that EPA might discourage the developm ent of coal as one of the nation‘s primary sources of energy if it prematurely and inappropriately subjected CCRs to regulation under Subtitle C of RCRA. Representative Bevill of Alabama, sponsor of the Amendment in the House, feared that the cost
of hazar dous waste regulation of CCRs would have an immediate inflationary effect on the economy and a disastrous impact on coal utilization.

To avoid this result, Representative Bevill explained in unambiguous terms that the purpose of
the Amendment was to:

enc ourage development of coal as a primary domestic source of energy, avoid unnecessary inflationary impact, and focus the efforts of the Environmental Protection Agency in implementing the Resource Conservation and Recovery Act toward activities truly necess ary to protect public health and the environment, specifically, it would require EPA to defer imposition of regulatory requirements on the disposal of the waste by

- product of fossil fuel combustion, of discarded mining materials and of cement kiln dust unt il after EPA has completed studies to determine whether, if at all, these materials present any hazard to human health or the environment. These studies would include evaluation of the economic and environmental aspects of existing and alternative disposal and reuse options. EPA would also be required to focus on the impact of these alternatives on the use of our coal and other natural resources. 126 Cong. Rec. 3361 (1980). [Footnote 2: On the same day that the Senate passed the Huddleston Amendment (the Se nate predecessor to the Bevill Amendment), it also adopted a resolution expressing concern about the national security implications of dependence on foreign oil supplies and calling on the President to propose a plan for displacing specific percentages of foreign oil with domestic coal. S. Res. 175, 96th Cong., 1st Sess. (1979), 125 Cong. Rec. 13241 (1979).] Representative Bevill estimated that compliance with the proposed Subtitle C program would cost the utility industry $1 billion in the first three year s, and that these “costs are likely to be passed along to consumers, with an immediate inflationary impact.” 126 Cong. Rec. at 3361; see also id. at 3363 (remarks of Rep. Findley); 125 Cong. Rec. at 13245 (remarks of Sen. Huddleston); id. at 13246 (remarks of Sen. Ford). As the D.C. Circuit has made clear, “the emphasis on economic factors . . . is consistent with . . . . Congress‘s obvious goal in enacting the
Bevill Amendment

– to relieve [the Bevill industries] of the onerous economic burden of stringent Subtitle C controls if at all possible.” Envtl. Def. Fund v. EPA, 852 F.2d 1309, 1315 (D.C. Cir. 1988) (emphasis added) (“EDF v EPA”). [Footnote 3: While the EDF v. EPA decision involved a challenge to EPA‘s regulatory determination not to regulate Bevill mining wastes under RCRA Subtitle C, the Court‘s description of the purpose of the Bevill Amendment to have EPA avoid Subtitle C regulation if at all possible for Bevill wastes obviously applies to all the Bevill wastes, including CCRs.] As discussed belo w, the projected compliance costs associated with EPA‘s proposed Subtitle C option have skyrocketed to a range of at least $5.32 to $7.62 billion per year. See EPRI, 2010, Cost Analysis of Proposed National Regulation of Coal
Combustion Residuals from the Electric Generating Industry, EPRI, Palo Alto, CA: 2010.
1022296 at 4

- 1 (“EPRI Cost Report”).290

Additionally, other supporters of the Amendment have been acutely sensitive to the nation‘s dependence on foreign energy sources; they intended the Bevill Amendm ent to reflect congressional policy that any regulatory program for CCRs under RCRA not create disincentives for the use of coal, including regulations that would cause utilities to switch fuels from coal to other sources. See, e.g., 126 Cong. Rec. at 3363 (remarks of Rep. Rahall) (“[a]t a time when we are seeking to encourage electric utilities and others to switch from the burning of oil to coal, it would be highly inappropriate to place further unnecessary regulatory roadblocks in the way of
increased co al usage”); 125 Cong. Rec. at 13246 (remarks of Sen. Byrd) (under this amendment, “those who produce coal will be able to do so without the fear that utility customers will be forced to use some other fuel because of environmental regulations”).

The Amend ment also reflected the congressional intent to promote the beneficial use of CCRs since “a national commitment to encourage reuse of such materials as fly ash was a key element of RCRA,” which Representative Bevill observed “seem[ed] to have not received adequate attention at EPA.” 126 Cong. Rec. at 3362.[Footnote 4: Representative Bevill emphasized that the beneficial use of CCRs “saves energy,” explaining, for example, that the use of fly ash in cement results in a 15 percent savings in the amount of ene rgy needed to that product, and is cost effective, saving tax payers 10

- 15 percent in federally sponsored concrete construction projects. 126 Cong. Rec. at 3362.] Representative Findley of Illinois, another supporter of the Amendment, was more direct in hi s caution to EPA about the adverse impact on CCR beneficial use resulting from the regulation of CCRs under RCRA Subtitle C. He warned that if the Agency were to regulate CCRs under RCRA‘s hazardous waste program, the “flourishing industry which recycles t hese byproducts would be gravely disrupted and possibly closed down.” Id. At 3363.

Representative Rahall of West Virginia was equally direct that EPA avoid any unnecessary regulation of CCRs under RCRA Subtitle C for fear that such a program would devasta te the CCR beneficial use market. He urged that “avoidance of unnecessary regulation of coal byproducts is particularly important because of the impact such regulation will have on reuse.” Id. He stressed that it was critical to avoid such unnecessary regu lation in light of the fact that CCRs used in the beneficial use market compete with a variety of other natural aggregates and
materials:

It is obvious that the imposition of any expensive regulatory requirements on these developing
industries will have a disastrous impact on them. It is thus vital that EPA fully evaluate a need for regulation, and the alternatives to various regulatory schemes, before blindly and only because coal is involved, imposing regulations on these coal byproduct materials.

Id. a t 3363

- 64. Representative Staggers, Chairman of the Interstate and Foreign Commerce Committee, which reported the RCRA reauthorization bill, echoed the concerns about the adverse impact on CCR beneficial use if CCRs were regulated under Subtitle C:

[Subti tle C regulation of fossil fuel combustion wastes] would run counter to one of the principal designs of the Resource Conversation and Recovery Act

-- conservation of valuable material ... Coal combustion products, including particularly fly ash, provide sign ificant beneficial reuses and substitution for other more costly materials ... The act [RCRA] is intended to encourage, not discourage, such beneficial reuses.291

126 Cong. Rec. at 3364

- 65. See also id. at 3362 (remarks of Rep. Bevill), 3362

- 63 (remarks of Rep . Horton), 3363 (remarks of Rep. Findley & Rep. Rahall); 125 Cong. Rec. at 13245 (remarks of Sen. Huddleston). Senator Huddelston summed up the purpose of the Bevill Amendment by making clear to EPA that such regulation was to be an option of last resort:

In my amendment [the Senate equivalent to the Bevill amendment] the Administrator should be extremely cautious in imposing any additional regulations on these materials, particularly in view of the resulting discouragement of coal use and the recovery and reuse of valuable fossil fuel combustion byproducts.

125 Cong. Rec. at 13245. [Footnote 5: Both amendments were virtually identical in their treatment of utility combustion wastes. Compare 125 Cong. Rec. 13241, 13244 (1979) with 126 Cong. Rec. 3359

- 61 (1 980). The significant difference in the two versions was that the Senate amendment also suspended the regulation of certain oil, natural gas and geothermal energy wastes, while the House amendment suspended the regulation of mining and cement kiln dust

was tes. The Conference Committee reconciled the two versions by adding the Senate‘s oil, natural gas and geothermal waste suspension to the House version on utility, mining and cement kiln dust wastes. See H.R. Conf. Rep. No. 96

- 1444 at 31

- 32 (1980), reprinte d in 1980
U.S.C.C.A.N. 5030

- 31. ]

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 16 

### 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:
Other Sections: 9.3.2 

### Comment Excerpt Text: B. The Subtitle C Option Is Inconsistent With The Bevill Amendment And Arbitrary And Capricious Because It Would Result In Unnecessary And Excessively Burdensome Regulation
Of CCRs

A fundamental purpose of the Bevill Amendment is to ensure that any final regulatory option
that EPA selects for CCR uses cost

- effective controls, to avoid imposing undu e regulatory costs on the utility industry. Representative Bevill could not have been more direct on this point when introducing his Amendment, emphasizing that any final regulation of CCRs not result in “unnecessary inflationary impact[s]” on the use of c oal from overly stringent CCR regulations. 126 Cong. Rec. 3361; see also id. At 3363 (remarks of Rep. Rahall) (“[a]t a time when we are seeking to encourage electric utilities and others to switch from the burning of oil to coal, it would be highly inappro priate to place further unnecessary regulatory roadblocks in the way of292

increased coal usage”); 125 Cong. Rec. at 13246 (remarks of Sen. Byrd) (under this amendment, “those who produce coal will be able to do so without the fear that utility customers will be forced to use some other fuel because of environmental regulations”).

The D.C. Circuit expressly acknowledged the Bevill Amendment‘s directive to EPA that it consider costs in making a final regulatory determination, emphasizing that:

Congress inten ded attention to cost and the economic impact of regulatory controls in making a regulatory determination. The emphasis on economic factors is consistent with Congress‘ obvious goal in enacting the Bevill Amendment

– to relieve [the Bevill industries] of t he onerous economic burden of stringent Subtitle C controls if at all possible.

EDF v. EPA, 852 F.2d at 1314 (emphasis added). Indeed, RCRA Section 8002(n)(6) specifically lists costs as an independent study factor in determining whether CCRs warrant regu lation under
RCRA Subtitle C.

EPA‘s Subtitle C option is flatly inconsistent with Congress‘s “obvious goal in enacting the Bevill Amendment” to avoid Subtitle C regulation and the associated regulatory costs of this option “if at all possible.” In fact, E PA readily acknowledges that one of the express purposes of the Subtitle C option is to increase the costs of CCRs under the Agency‘s misguided impression that this will increase CCR beneficial use. See 75 Fed. Reg. at 35185. In fact, as discussed below, E PA‘s proposed Subtitle C option would regulate CCR disposal facilities more stringently than any other hazardous waste by taking the unprecedented step of extending Subtitle C controls to previously closed and inactive CCR surface impoundments. Id. at 3517 7. Thus, not only does the Subtitle C option reflect the most extreme and costly regulatory choice available to EPA under RCRA, it would apply the hazardous waste disposal rules to CCRs in a manner more stringent than that previously applied to any other h azardous wastes.

This draconian approach to regulating CCRs under RCRA is diametrically opposed to the very purpose and objective of the Bevill Amendment and cannot be pursued. While Congress directed
EPA to select the most cost

- effective regulatory optio n for CCRs, the proposed Subtitle C option appears to be specifically designed to have just the opposite result; namely, to make the disposal of CCRs as costly and as burdensome as possible.

The EPRI Cost Report referenced above examined the full range of Subtitle C compliance costs for utilities, including the costs of retrofitting upstream CCR handling units (e.g., hoppers, tanks and conveyor systems) to meet EPA‘s hazardous waste design and operating requirements. See EPRI Cost Report at 2

- 11

– 2

- 12. EP A acknowledges that this latter cost element

– the need to upgrade and/or retrofit upstream CCR handling units

– is a necessary cost component of the Subtitle C option, but the Agency‘s Subtitle C cost estimate does not include this important cost

componen t because EPA lacked information “on baseline CCR storage practices.” 75 Fed. Reg. at 35212. The EPRI Cost Report also includes another important cost element of Subtitle C compliance not evaluated by EPA; specifically, the costs to power plants of having to construct new wastewater treatment facilities to replace the wastewater treatment function served by CCR surface impoundments that would have to close under the Subtitle C option. EPRI Cost Report at
2

- 10

– 2

- 11. In its cost analysis, EPA fails to recog nize that CCR surface impoundments often293

serve a dual function at power plants: both to manage CCRs and to serve as a component of the plant‘s wastewater treatment system. Mandatory closure of the CCR surface impoundments under the Subtitle C option will r equire power plants to invest substantial resources in designing and constructing new wastewater treatment facilities.

Finally, the EPRI Cost Report also includes the increased disposal costs that will be incurred by
electric utilities under the Subtitle C option due to the need to send CCRs to off

- site commercial hazardous waste disposal facilities. Id. at 2

- 14

– 2

- 16. As discussed further below, EPA mistakenly assumes that, under the Subtitle C option, electric utility CCR disposal options will
remain un changed. In fact, however, for a multitude of reasons, many utilities will not be able to permit new Subtitle C landfills onsite, will be legally prohibited from using nearby existing commercial RCRA Subtitle D landfills, and will be compelled to transport CCRs currently managed on

- site or locally to out

- of

- state commercial hazardous waste disposal facilities.

All told, the EPRI Cost Report estimates that the compliance costs for electric utilities will be, at a minimum, in the range of $55.3 to $74.5 bill ion over a 20

- year horizon (at a seven percent discount rate). Id. at 4

- 1. If a three percent discount rate is used, which is often appropriate where, as here, the regulatory costs could be passed onto consumers in the form of higher electricity rates, the Subtitle C compliance costs jump to a range of $78.9 to $110.0 billion. Id. at
4

- 4

– 4

- 5. [Footnote 18: Further, these estimates do not include other costs that would be incurred under the Subtitle C option, including (1) landfill construction costs and a ssociated land acquisition costs; (2) costs of replacement power during outages or to compensate for early retirements; (3) undertaking facility

- wide corrective action as a condition of obtaining a RCRA Subtitle C permit; (4) state hazardous waste generato r fees; and (5) the cost of capital. Id. at 2

- 8

– 2

- 9. ] These numbers are in contrast to the $20.1 billion in compliance costs estimated by EPA in its Regulatory Impact Analysis (“RIA”).

Further, even the staggeringly high compliance numbers included in the EPRI Cost Report are predicated on a number of conservative assumptions regarding the ability of power plants to meet the Subtitle C requirements in a full and timely fashion. Id. at 4

- 5

– 4

- 6. In fact, the real world compliance costs may be far higher . These costs would be sufficiently high to render some
coal

- fired power plants, particularly smaller generating units, not economically viable, forcing their early closure. See EOP Group, Inc, “Cost Estimates for the Mandatory Closure of Surface Impoundme nts Used for the Management of Coal Combustion Byproducts at Coal

- Fired Electric Utilities,” (Nov. 2010) (“EOP Report”) at 13 (attached as Appendix 19). Thus, instead of promoting the use of coal by selecting the most cost

- effective regulatory option for C CRs, EPA‘s Subtitle C option will actually discourage the use of coal by rendering the use of coal at some facilities uneconomical. This result is in direct contravention of the express congressional purpose behind the Bevill Amendment.

Such an approach i s unsupportable given the fact that EPA itself readily acknowledges that the substantive controls for CCR landfills and surface impoundments are similar. See 75 Fed. Reg. at 35213. Given that the substantive disposal controls under the Subtitle D option wo uld be just as effective in protecting human health and the environment, as those provided for under the Subtitle C option at far less cost and without the severe collateral impacts on beneficial use, the price of power and the use of coal, the Subtitle C option is inconsistent with the stated purpose of294

the Bevill Amendment.

The hazardous constituents present in CCR leachate also support EPA‘s earlier Regulatory Determinations that these materials can appropriately be managed under a Subtitle D program.
A s AECOM Environment summarizes in its report, EPRI conducted a comparison between the hazardous constituents present in CCR leachate and leachate from municipal solid waste landfills (“MSWLFs”), which are, of course, subject to Subtitle D regulation. See A ECOM Environment, Report on CCR Proposal (Nov. 2010) (“AECOM Report”) at 4 (attached as Appendix 20). This analysis determined that 99 hazardous constituents were detected in the MSWLF leachate of which 62 were detected at the 90th percentile, while only 1 4 hazardous constituents were detected in the CCR leachate all of which were detected at the 90th percentile. Id. Given the significantly broader range of hazardous constituents in MSWLF leachate, it appears wholly unjustified to subject CCR to more restri ctive Subtitle C regulation while MSWLFs are subject
to Subtitle D controls.

Further, EPA‘s selection of the Subtitle C option would be arbitrary and capricious because EPA has not explained why its earlier conclusions that the Subtitle C option would res ult in excessive and inappropriate regulatory controls for CCRs are no longer true. In its 1993 final Regulatory Determination concluding that the four large volume CCRs

– fly ash, bottom ash, boiler slag, and flue gas desulfurization waste

– do not warran t hazardous waste regulation, EPA emphasized that the inflexible Subtitle C hazardous waste framework was inappropriate for CCRs, explaining “that it is unlikely that Subtitle C would effectively address the problems associated with the four large volume f

ossil

- fuel combustion wastes [CCRs] without imposing unnecessary controls.” 58 Fed. Reg. at 42477 (emphasis added).

This was an important conclusion, because as EPA explained in outlining the factors that it would evaluate in making a final regulatory det ermination, “the special status of the [CCR] waste requires that the Agency consider the impacts to the industry that regulation under Subtitle C would create in making a decision to regulate the waste as hazardous.” 58 Fed. Reg. at 42471(emphasis added). EPA found that the rigid nature of the Subtitle C regulatory system would result in excess costs and unnecessary regulation as applied to CCR management units. After acknowledging that CCRs rarely exhibit a hazardous waste characteristic and thus would

not be subject to hazardous waste controls unless they were listed as a hazardous waste, EPA emphasized that the listing approach would be inappropriate and excessive:

Furthermore, it was noted that even if these wastes were listed as hazardous, and therefor e, regulated under Subtitle C, such an approach would be inappropriate for these wastes. A Subtitle C system would require coal combustion waste units to obtain a RCRA Subtitle C permit (which would unnecessarily duplicate existing State requirements) and would establish a series of waste unit design and operating requirements for these wastes, which would generally be in excess of requirements to protect human health and the environment.

Id. at 42477 (emphasis added).

EPA reiterated this conclusion in it s 1999 Report to Congress, explaining “that [RCRA] Subtitle C is inappropriate to address any problems associated with disposal of these wastes and that the295

continued use of site and region specific approaches by the states is more appropriate for
addressi ng the limited human health and environmental risks that may be associated with disposal of these wastes.” 1999 Report to Congress Vol. at 1 3

- 5. EPA emphasized that regulating CCRs under RCRA‘s hazardous waste program “would unnecessarily duplicate
existi ng State requirements” and “would establish a series of waste unit design and operating requirements for these wastes, which would generally be in excess of requirements to protect human health and the environment.” 58 Fed. Reg. at 42471 (emphasis added).

Having previously concluded that the Subtitle C approach would be inappropriate because, among other reasons, it would result in the over

- regulation of CCRs in contravention of the Bevill Amendment, EPA provides no explanation whatsoever in the instant pr oposal as to what, if anything, has changed to suggest that the imposition of these very same Subtitle C controls will no longer result in inappropriate and unnecessary costs on the utility industry. As EPA itself noted earlier, “the special status of the [CCR] waste requires that the Agency consider the impacts to the industry that regulation under Subtitle C would create in making a decision to regulate the waste as hazardous.” Id. at 42471. There is no reasoned explanation for EPA‘s
about

- face on this is sue.

The excessive costs and unduly burdensome regulation of CCRs under the instant proposed Subtitle C option are at least as great today as they were ten years ago when EPA rejected application of the Subtitle C hazardous waste rules for CCRs. As EPA ha s completely failed to explain why regulation of CCRs under Subtitle C is now appropriate, having expressly found earlier that such regulation would be both “inappropriate” and in “excess of requirements” for CCRs, any final Subtitle C regulation would be arbitrary and capricious. See S. Co. Servs. v. FCC, 313 F.3d 574 (D.C. Cir. 2002) (noting that, in evaluating whether an agency‘s changed position is arbitrary and capricious, “the issue is whether the agency furnished a reasoned explanation for its change d position.”).

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationa le for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 2 

### 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:

B. The Text Of The Bevill Amendment296

The enacted Amendment ultimately incorporated these congressional policy directives into RCRA by first suspending EPA‘s authority to regulate CCRs under Subtitle C of RCRA until
EPA completed a study to determine whether such regulation was warranted. Specifically, the Bevill Amendment provides that fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated primarily from the combustion of coal or othe r fossil fuels shall be subject to regulation only under other applicable provisions of federal or state law in lieu of RCRA Subtitle C until at least six months after the date of submission to Congress of a comprehensive study of those wastes. RCRA § 3001 (b)(3)(A), 42 U.S.C. § 6921(b)(3)(A). [Footnote 6: This section reads in pertinent part: Notwithstanding the provisions of paragraph (1) of this subsection, each waste listed below shall, except as provided in subparagraph (B) of this paragraph, be subject only to regulation under other applicable provisions of Federal or State law in lieu of this subtitle until at least six months after the date of submission of the applicable study required to be conducted under subsection .... (n) .... of section 6982 of thi s title and after promulgation of regulations in accordance with subparagraph (C) of this paragraph: (i) Fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated primarily
from the combustion of coal or other fossil fuels. ]

This comprehensive study was to assess the environmental risks, if any, posed by CCRs, taking into account the following eight factors:

(1) the source and volumes of such material generated per year;

(2) present disposal and utilization practices;

(3 ) potential danger, if any, to human health and the environment from the disposal and reuse of such materials;

(4) documented cases in which danger to human health or the environment from surface runoff or leachate has been proved;

(5) alternatives to cu rrent disposal methods;

(6) the costs of such alternatives;

(7) the impact of those alternatives on the use of coal and other natural resources; and

(8) the current and potential utilization of such materials.

RCRA § 8002(n), 42 U.S.C. § 6982(n).

To ensure that all relevant information was available to the Agency and to avoid duplication of effort, Congress specifically directed EPA to “review studies and other actions of other Federal and State agencies .... and invite participation by other concerned parties, including industry and other Federal and State agencies .... .” Id.

Within six months following completion of the study and a report to Congress on the Agency‘s297

findings, EPA was required to make a final regulatory determination whether to (1) subj ect to Subtitle C regulation the CCRs addressed in the study and report to Congress, or (2) determine that Subtitle C regulation of these wastes is not warranted. The Bevill Amendment required the Agency to base this final regulatory determination “on info rmation developed or accumulated pursuant to such study, public hearings, and comment. . . .” RCRA § 3001(b)(3)(C), 42 U.S.C. § 6921(b)(3)(C). In short, EPA could only reach the decision to regulate CCRs under Subtitle C after following a statutorily

- presc ribed series of steps that involved congressional oversight marked by EPA‘s submission of reports to Congress that would inform the relevant congressional committees of jurisdiction of the Agency‘s preliminary recommendations. The final regulatory determin ation was to be issued according to a statutorily

- imposed deadline and based on public hearings and comments responding to the report to Congress. See EDF v. EPA, 852 F.2d at 1314 (“The statute clearly states that the agency is to base its regulatory
deter mination on the information gathered for the § 8002(p) study.”).

Also, it is important to appreciate that Congress was particularly concerned that EPA not make this decision in a vacuum. To that end, Congress emphasized that the Agency was to seek the

ass istance and cooperation of those with expertise in the field including “other agencies of Government that are aware of the role coal plays in our national energy policy, or of actual disposal and utilization practices.” 126 Cong. Rec. at 3362. These includ ed the Department of Energy, the Department of the Interior, the Federal Highway Administration, Department of Commerce, and the Department of Agriculture. Id. The input of these other federal agencies to assist EPA in reaching a final regulatory determina tion was a critical component of the Bevill Amendment; it was important to Congress that the final determination reflect “a cooperative, informed effort” that met the nation‘s energy goals. Id.

Also of critical importance to Congress was the Bevill Amendm ent‘s decision making process; these provisions reflect congressional intent that EPA reach all final decisions in a transparent manner that provides the public and Congress with an opportunity to determine whether any decision to regulate CCRs under RCRA Subtitle C was appropriate. Representative Bevill emphasized this point by stressing that, after EPA issued its statutorily

- required report to Congress containing its recommendation whether CCRs warranted regulation under RCRA Subtitle C, the Agency would “be required to obtain public views on [the report] and to make known whether as a result of this process, EPA believes any regulation of these materials is necessary.” Id. Congress viewed this requirement as “especially important in view of our
national c ommitment to develop a coherent and consistent policy toward the use of our coal and other energy resources.” Id. The public notice and comment requirement was also intended to “allow interested parties to evaluate the basis of the Agency‘s decision, and t o address the question of what degree of regulation, if any, is appropriate” for CCRs. Id.

Taking into consideration these congressional concerns, EPA completed its statutory obligation under the Bevill Amendment in May 2000, when it issued its final Regu latory Determination concluding that CCRs do not warrant regulation under Subtitle C of RCRA.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preamble for a discussion on our decision to reg ulate CCR under
subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill298

Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determ ination is to be made are outside the scope of this rulemaking at this time.

Section 2.1.6

- Other comments on legal issues Total Number of Submissions: 59 Total Number of Comments: 91



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 04005

- 5 

### 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: Section 7003 of RCRA provides the EPA with the authority to address co nditions that may present imminent and substantial endangerment to human health or the environment when the handling, storage, treatment, transportation, or disposal of any solid or hazardous waste may present such an endangerment. We call upon the EPA to initiate such measures immediately so that further exposure of innocent people and the environment is halted.

Response: The Agency acknowledges and appreciates the comment. The commenter is also referred to Unit II of this supporting preamble for a discussion of when the authorities under Section 7003 of RCRA are utilized. These authorities are separate from this rule however they can be implemented when situations warrant their use.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06041

- 1 

### Organization 1 

### : SKB Environmental, Inc (SKB) 

### Commenter 1 : Ryan O'Gara Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.2 

### Comment Excerpt Text:

SKB Environmental, Inc (SKB) would like to take this opportunity to offer comments regarding the United States Environmental Protection Agency's (USEPA's) proposed regulations for coal combustion byproducts (CCBs) under the Resource Conservation and Recovery Act(RCRA) (Docket ID No. EPA

- HQ

- RCRA

- 2009

- 0640) . SKB is opposed to the USEPA's current proposal that would regulate CCBs as a hazardous waste under RCRA Subtitle C. In addition, SKB is also opposed to particular provisions that would set a precedent where no exemptions would be299

provided for waste disposed prior to listing under RCRA Subtitle C.

Response: The Agency acknowledges and appreciates the comment. However this comment is no longer relevant to this rulemaking as the Agency has decided to promulgate a subtitle D rule
for the dispo sal of CCR in landfills and surface impoundments.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06041

- 7 

### Organization 1 

### : SKB Environmental, Inc (SKB) 

### Commenter 1 : Ryan O'Gara Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.4.1.4.1 

### Comment Excerpt Text: Another issue SKB is concerned about relates to language found on page 35177 of the Federal Register public notice of the rule. Historically, facilities that have accepted in the past material that was not but has subsequently been reclassified to be regulated under RCRA Subtitle C have been exempted from the regulation. For example, when the USEPA created the waste codes K169, K170, K171 and K172 for petroleum refining wastes, the facilities that managed the waste prior to August 1998 were not required to meet the Subtitle C standards.

The proposed rules would set a dangerous precedent by not exempting facilities that accepted wastes that were not regulated under RCRA Subtitle C at the time of disposal .This would be a drastic departure from long

- standing past practices and would have a devastating impact on disposal facilities such as ours if this precedent were to be applied to other waste regulations. We
understand the inten t of the policy is to phase out the operation of Treatment Surface Impoundments as a disposal option for CCBs, but the approach this proposal takes is unreasonable and sets a very dangerous precedent. Other policy approaches could be taken to
achieve the U SEPA's desired outcome without setting such a dangerous precedent that could potentially result in untold negative unintended consequences.

Response: The Agency acknowledges and appreciates the comment. However this comment is no longer relevant to this rulemaking as the Agency has decided to promulgate a subtitle D rule for the disposal of CCR in landfills and surface impoundments.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06041

- 8 

### Organization 1 

### : SKB Environmental, Inc (SKB) 

### Commenter 1 : Ryan O'Gara Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.2 4.1.1 

### Comment Excerpt Text:300

To summarize, SKB is opposed to the regulation of CCBs under RCRA Subtitle C, but c ould support regulation of these wastes under RCRA Subtitle D. SkB is also opposed to the aspects of the proposed rule that would not exempt facilities that accepted waste were not regulated under RCRA Subtitle C at the time of disposal .

Response: The Agency acknowledges and appreciates the comment. However this comment is no longer relevant to this rulemaking as the Agency has decided to promulgate a subtitle D rule for the disposal of CCR in landfills and surface impoundments.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06248

- 10 

### 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 problem wi th the present rulemaking is that Congress did not provide EPA with statutory authority to reconsider its prior determinations that CCRs are to be regulated under Subtitle D, not Subtitle C. Reconsideration of whether CCRs should be regulated under Subtitl e C is therefore barred under two established provisions of administrative law

— the first prong of the Chevron test, and the doctrine of administrative res judicata. Under the test established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, I nc. (a/k/a the Chevron test),21 a court implements a two

- prong test to review the validity of an administrative agency's “construction of the statute which it administers.”22 First, the court must look to whether Congress has expressed a clear intent with regard to the particular issue in dispute.23 If there is an unambiguously expressed congressional intent, both the court and the agency must comply.24 If Congress has either expressed no view or an ambiguous view on the particular issue in dispute, the cou rt must address the second question of whether the agency provided a “permissible construction of the statute.”25 In the case of the present rulemaking, EPA’s attempt to reconsider whether to regulate CCRs under Subtitle C violates the unambiguously expre ssed congressional intent of the Bevill Amendment. The intent of the Bevill Amendment required EPA to make a single determination and deliver that finding to Congress. The determination contained an analysis of the eight factors set forth in 42 U.S.C. § 69 82(n) concerning whether “materials generated from the combustion of coal” should or should not be regulated as a hazardous waste. The Bevill Amendment did not provide for a reconsideration of the determination more than 30 years after the statute was

enac ted, and more than 20 years after EPA’s determination in 1988 that CCRs should not be regulated under Subtitle C. The present rulemaking, therefore, fails the first prong of the Chevron test in that it is counter to the clear intent of Congress expressed i n the statute. The change, if it is to be made, must be made by Congress, not by EPA as the regulating agency.
19 Id. 20 1999 Report to Congress at ES1

- 2, and 65 Fed. Reg. 32214, 32218 (May 22, 2000). 21 467 U.S. 837, 842

- 43 (1984).
22 Id. At 842.301

23 Id.
24 Id. at 842

- 43.
25 Id. at 843

Response: The Agency acknowledges and appreciates the comment. However this comment is no longer relevant to this rulemaking as the Agency has decided to promulgate a subtitle D rule for the disposal of CCR in landfills and surface impoundments.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 11 

### Organization 1 

### : Kentucky Department for Environmental Protection 

### Commenter 1 : R. Bruce Scott Commenter Type: State Government
Classification: Substantive Comment Category:
C urrent Task: Examine Context Assigned/Due:
Other Sections: 4.5 

### Comment Excerpt Text: In order for EPA to effectively regulate coal combustion residuals as a solid waste, an amendment to the Solid Waste Disposal Act may need to be obtained from Congress. Currently, EPA has oversight ability over state solid waste programs in regards to ensuring there are sanitary landfills being utilized in place of open dumps and in ensuring appropriate requirements are being met for landfills that accept household hazard ous waste and small quantity generator
hazardous waste. An amendment to 42 CFR Section 6949a which would include coal combustion residuals in addition to household hazardous waste and small quantity generator hazardous waste, would allow EPA to have such o versight authority. This amendment would enable EPA to set regulatory standards for states to comply with in their respective solid waste programs with regards to the disposal of coal combustion residuals in solid waste landfills.

In addition, once this s tatutory authority is obtained by EPA, the Commonwealth of Kentucky would propose the following additional requirements be added to the proposal under the solid waste scenario to ensure protection of human health and the environment:

- Some properly control led unencapsulated uses for beneficial use;

- Allowing the state permitting programs to provide variances and alternate designs with prior review and public notification; and

- Sufficient time for state agencies to ramp up and implement the program

With the se changes, the Commonwealth of Kentucky believes that coal combustion residuals can be effectively regulated to the extent necessary to protect human health and the environment.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06275

- 28 

### Organization 1 

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

### Commenter 1 : Jeffrey L. Woolstrum302

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



### Comment Excerpt Text: Although LBWL and MSU recognize the need for some regulation of CCRs managed in unlined and unregulated surface impoundments, LBWL and MSU believe that, because EPA lacks the proper tools under RCRA to establish appropriate federal CCR regulations, EPA should allow Congress to review RCRA and, if necessary, amend its provisions. Until Congress has completed its review, EPA should not promulgate any nationally

- applicable CCR disposal regulations.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06275

- 45 

### 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: Examine Context Assigned/Due:



### Comment Excerpt Text: Moreover, LBWL and MSU believe EPA should defer all action on this matter until Congress amends RCRA to provide EPA with the proper tools to effectively regulate CCR disposal.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 12 

### 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: More than 30 years have passed since the Bevill Amendment [Footnote 7: ( See Bevill Amendment, 42 U.S.C. § 6982(n) (1980)] was enacted in 1980. Despite a clear Congressional mandate to provide regulation within two and half years, to date, there has still not been a determination about how to dispose of the Bevill wastes. Yet since 1980, EPA has studied coal
combustion waste with mounting evidence that coal ash poses severe risks to human health and303

the environment.

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

In 1976, Congress passed the Resource Conservation and Recovery Ac t (RCRA) [Footnote 8:
Pub. L. No. 94

- 580, 90 Stat. 2795 (1976) (codified as amended at 42 U.S.C. §§ 6901 to 6992k)] to regulate treatment and disposal of hazardous wastes in order to protect human health and the environment. Subtitle C of RCRA regulated ha zardous wastes and contained directives to EPA to identify and list hazardous wastes under this title.

After RCRA’s passage and pursuant to congressional directive, EPA published regulations in 1978 entitled “Proposed Guidelines and Regulations and Propos al on Identification and Listing.” [Footnote 9: “Proposed Guidelines and Regulations and Proposal on Identification and Listing” for RCRA Subtitle C hazardous waste, 43 Fed. Reg. 58,946 (Dec. 18, 1978)] In these regulations, EPA proposed deferring “applica bility of most of the treatment, storage, and disposal standards for selected high

- volume, relatively low risk waste categories until information is gathered and assessed to determine how they can best be handled.” [Footnote 10: “Proposed Guidelines and Re gulations and Proposal on Identification and Listing” for RCRA Subtitle C hazardous waste, 43 Fed. Reg. 58,946 (Dec. 18, 1978) at 58,948.] Thus, EPA stated
that it would address so

- called high volume, low risk wastes (mining waste, utility waste, gas and

o il drilling muds, gypsum piles, and cement kiln dust)

— which it termed “special wastes”

— in later regulations, and it solicited information and comments that would assist the agency in developing substantive standards. [Footnote 11: “Proposed Guidelines and Regulations and Proposal on Identification and Listing” for RCRA Subtitle C hazardous waste, 43 Fed. Reg. 58,946 (Dec. 18, 1978) at 58,992 (“A proposed rulemaking will be published at a later date regarding the treatment, storage and disposal of special w aste. The Agency will be developing additional information in order to write substantive standards for special waste and hereby solicits information and comment from the public which may assist the agency in developing its proposals.”)]

On May 19, 1980, t hese proposed regulations were promulgated as final regulations that listed specific types of hazardous wastes subject to subtitle C regulation under RCRA. EPA determined that the “special wastes” should be subject to the RCRA part 264 and 265 regulations (implementing subtitle C) without exemption. [Footnote 12: 45 Fed. Reg. 33,154, 33,174

– 75 (May 19, 1980)]

Just before these regulations were scheduled to take effect, Congress enacted the “Bevill Exclusion” on October 21, 1980, as part of the Solid Waste Disposal Act Amendments of 1980 [Footnote 13: Pub. L. No. 96

- 482, 94 Stat. 2334, Solid Waste Disposal Act, Section 3001(b)(3)(A)(i) (codified at 42 U.S.C. § 6921(b)(3)(A)(i)) (SWDA) (“Notwithstanding the provisions of paragraph (1) of this subsection, each waste listed below shall, except as provided in subparagraph (B) of this paragraph, be subject only to regulation under other applicable provisions of Federal or State law in lieu of this subtitle until at least six months after the date of
submission of the applicable study required to be conducted under subsection (f), (n), (o), or (p) of section 8002 of this Act and after promulgation of regulations in accordance with304

subparagraph (C) of this paragraph:(i) Fly ash waste, bottom ash waste, slag waste, an d flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels.”)] The Bevill Exclusion, found in Section 3001(b)(3)(A)(i) [Footnote 14: 42 U.S.C. § 6921(b)(3)(A)(i).] exempted large volume wastes generated by coal and other fossil fuel combustion from regulation under subtitle C temporarily while further studies were undertaken. [Footnote 15: Id. SWDA, Section 3001(b)(3)(A)(i) codified at 42 U.S.C. §§ 6921(b)(3)(A)(i)] Namely, as Section 8002(n) [Footnote 16: 42 U.S .C. § 6982(n).] required, the EPA was directed to conduct studies and submit a Report to Congress on the adverse effects to human health and the environment regarding ash disposal on a specified timeline. [Footnote 17: Id. at § 8002(n), 42 U.S.C. § 6982(n) The eight factors listed in SWDA Section 8002(n)(1)

- (8) for study include: source and volumes of such waste, present disposal and utilization practices, potential danger to human health and the environment from disposal and reuse of the meterials, documen ted cases where danger to human health or the environment from surface runoff or leachate has been proven, alternatives to current disposal methods, costs of such alternatives, impact of those alternatives on the use of coal and other natural resources, an d the current and potential utilization of such materials.] Section 3001(b)(3)(c) [Footnote 18: 42 U.S.C. § 6921(b)(3)(C).] specified that the EPA was required to promulgate regulations for these wastes or determine that no such regulations were needed in the six months following the study, hearings and public comment.[Footnote 19: Id. § 3001(b)(3)(C); 42 U.S.C. § 6921(b)(3)(C).]

While the Bevill Exclusion was the result of a successful industry lobbying effort to avoid regulation, its stated intent was to provide EPA with additional information about the composition, characteristics and hazards posed by these wastes, as expressed in the 1978 proposed “special waste” regulations. Thus, Congress required EPA to undertake a study of the
coal combustion waste issue on a two

- year time frame. [Footnote 20: SWDA, § 8002(n).] Two years after the Bevill amendment passed, EPA missed its October 31, 1982 deadline to complete the required report on fossil fuel combustion waste for Congress, and then missed its subseque nt deadline to make a final regulatory determination on these wastes. [Footnote 21: EPA, Fossil Fuel Combustion Waste Legislative and Regulatory Timeline, http://www.epa.gov/waste/nonhaz/industrial/special/fossil/regs.htm; SWDA § 3001(b)(3)(C).]

Six years after EPA missed its deadline, in February of 1988, EPA finally published and submitted a Report to Congress on Wastes from the Combustion of Coal by Electric Utility Power Plants. [Footnote 22: EPA, Report to Congress: Wastes from the Combustion of Coal by Electric Utility Power Plants (EPA 530

- SW

- 88

- 002) (Feb., 1988).] The report only addressed wastes generated from the electric utility power plant coal combustion, and failed to address co

managed utility coal combustion wastes, other fossil fuel combust ion wastes, and non

- utility boiler wastes. [Footnote 23: EPA, Fossil Fuel Combustion Waste Legislative and Regulatory Timeline, http://www.epa.gov/waste/nonhaz/ industrial/special/fossil/regs.htm.)] EPA also failed to complete its Regulatory Determination on coal combustion wastes at that time. [Footnote 24: 2010 Proposed Rule, 75 Fed. Reg. 35,136

- 37.]

In 1991, due to EPA’s continued failure to complete a Regulatory Determination on coal combustion wastes, a citizen group filed suit against the EPA. [Footn ote 25: Gearhart v. Reilly (Civil No. 91

– 2345 (D.D.C.)).] On June 30, 1992, EPA settled the case, entering into a Consent Decree that established a schedule for EPA to complete the Regulatory Determinations for all305

coal combustion wastes. The Consent Decre e divided coal combustion wastes into two categories: (1) Fly ash, bottom ash, boiler slag, and flue gas emission control waste from the combustion of coal by electric utilities and independent commercial power producers; and (2) all other waste governed b y RCRA Sections 3001(b)(3)(A)(i) and 8002(n). [Footnote 26: EPA, Report to Congress: Wastes from the Combustion of Fossil Fuels vol. 1 (EPA 530

- R

- 99

- 010) (Mar. 1999) [hereinafter 1999 Report to Congress v.1 ], available at http://www.epa.gov/osw/nonhaz/indu strial/special/fossil/volume_1.pdf.] The Decree provided a specific timeline for development of the regulatory framework applicable to coal combustion

waste.

On August 9, 1993, pursuant to this Consent Decree, EPA published its Regulatory
Determination fo r the first category of wastes and concluded that regulation under subtitle C of RCRA for these wastes was not yet warranted. [Footnote 27: 58 Fed. Reg. 42,466 (Aug. 16, 1993), http://www.epa.gov/epawaste/nonhaz/industrial/special/mineral/080993.pdf.] For the second category of wastes, EPA decided that additional study was necessary. EPA prepared a report to Congress

— again following court

- ordered deadlines

— that was submitted in March 1999. [Footnote 28: See 1999 Report to Congress v.1 , ; EPA, Report to Cong ress: Wastes from the Combustion of Fossil Fuels , vol. 2 (EPA 530

- R

- 99

- 010) (Mar. 1999) [hereinafter 1999 Report to Congress, v.2 ], available at http://www.epa.gov/waste/nonhaz/industrial/special/fossil/volume_2.pdf.]

Finally, on May 22, 2000, EPA publish ed a regulatory determination for this second category of coal combustion wastes. [Footnote 29: 65 Fed. Reg. 32,214, (May 22, 2000). http://www.epa.gov/fedrgstr/EPA

- WASTE/2000/May/Day

- 22/f11138.htm] In this determination, EPA made the following findings:

- The wastes in this second category analyzed in the 2000 regulatory determination were nearly identical to the wastes analyzed in the first 1993 determination because the high volume wastes dominated the waste characteristics, even when co

- managed with o ther waste. The wastes from the 1993 determination remained exempt though they were similar to the wastes currently being analyzed. [Footnote 30: Id. at 32,217.] Thus, the “May 2000 Regulatory Determination addressed not only the remaining wastes, but effe ctively reopened the decision on CCRs that went to monofills,” which were addressed in the 1993 determination. [Footnote 31: 75 Fed. Reg. 35,128, 35,137 (June 21, 2010).]

- “Public comments and other analyses... have convinced us that these wastes could pose risks to human health and the environment if not properly managed, and there is sufficient evidence that adequate controls may not be in place.” [Footnote 32: 65 Fed. Reg. at 32,216.] Information on damage cases indicated a potential risk to human health and the environment.

- A more complete groundwater assessment was needed to determine the risk from arsenic. [Footnote 33: Id. at 32,216.]

- Improvements were being made in waste management practices due to increasing state oversight, although gaps remained in the current regulatory regime, which led it to retain the Bevill exemption. [Footnote 34: Id. at 32,215.]

On the basis of these findi ngs, EPA stated its intent to regulate under subtitle D, but cautioned repeatedly that the “waste might present sufficient potential threat to human health and the306

environment to justify subtitle C regulation.” [Footnote 35: Id. at 32,218.] Essentially, th e finding reflected deep uncertainty. Numerous times, EPA stated that, if circumstances change, EPA would “revisit” its determination. EPA stressed the temporal and contingent nature of its determination by qualifying its rationales adding “at this time” a t least a dozen times. [Footnote
36: Id. at 32,221, 32,222, 32,227, 32,228, 32,230, 32,231, 32,232, 32,234, 32235.]

EPA further outlined the factors that would be persuasive in regulating under subtitle C instead of subtitle D. In summary, EPA found that subtitle C regulation would be necessary: if a trend in protective CCR management did not continue; if available information indicated actual or potential damage to human health or the environment, adverse environmental effects, or inadequate state or fede ral regulation; if the report of the National Academy of Sciences regarding mercury

— a major component of coal combustion waste

— showed adverse health effects; or in the event of increased ‘‘risk[s] posed by managing coal combustion solid wastes if
levels of mercury or other hazardous constituents change due to any future Clean Air Act air pollution control requirements for coal burning utilities.’’ [Footnote 37: Id. at 32,214, 32,218, 32,221.]

Between 2000 and 2009, EPA made little progress toward regulatio n of coal ash. A report from EPA’s Office of the Inspector General investigating the agency’s inaction on coal ash regulation underscored that: “EPA has not published a proposed rule on CCW landfill and surface impoundments in the approximately 9 years sin ce its regulatory determination on CCW disposal in landfills and surface impoundments.” [Footnote 38: EPA, Office of the Inspector General, Response to EPA Administrator’s Request for Investigation into Allegations of a Cover

- up in the Risk Assessment for the Coal Ash Rulemaking 6 (Rept. 10

- N

- 0019) (Nov. 2, 2009) , available at http://www.epa.gov/oig/reports/2010/20091102

- 10

- N

- 0019.pdf.] However, over the past nine years, EPA has gathered additional data, held public meetings, updated the damage cases and th e quantitative risk impact assessment. [Footnote 39: Id. at 3.]

EPA acknowledges in the present rulemaking that many of the concerns highlighted in its 2000 Regulatory Determination have been triggered over the past ten years: "Review of the
information d eveloped over the past ten years has confirmed EPA’s original risk concerns, and has raised significant questions regarding the accuracy of the Agency’s predictions [in the 2000 Regulatory Determination] regarding anticipated improvements in management and state regulatory oversight of these wastes." [Footnote 40: 75 Fed. Reg. at 35,149.]

The original Bevill Amendment suggested that EPA should regulate coal combustion wastes if further study yielded evidence proving that it was a threat to human health and the environment. In the 30 years since that Amendment was passed, EPA’s studies and research have produced a growing body of evidence that overwhelmingly support a subtitle C regulation.

Response: The Agency acknowledges and appreciates the comment. Th e commenter is referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under
subtitle D of RCRA.307



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06316

- 6 

### 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 Lisa Evans, "Failing the Test: The Unintended Consequences of Controlling Hazardous
Air Pollutants from Coal

- Fired P ower Plants," Earthjustice]

[Copy of 2009 Petition for Rulemaking by Earthjustice et. al.]

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06326

- 2 

### Organization 1 

### : Old Dominion Electric Cooperative (ODEC) 

### Commenter 1 : Lisa D. Johnson Commenter Type: Electric Utility Company
Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: From the start, ODEC wants to make it clear that we strongly oppo se regulation of (CCRs) as a hazardous waste under Subtitle C of the Resource Conservation and Recovery Act (RCRA). ODEC is a member of the National Rural Electric Cooperative Association (NRECA), and we agree with NRECA's position that EPA's proposal to r egulate CCRs under Subtitle C of RCRA is arbitrary and capricious and in direct contravention of the Bevill Amendment.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06326

- 5 

### Organization 1 

### : Old Dominion Electric Cooperative (ODEC) 

### Commenter 1 : Lisa D. Johnson Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: EPA may not reverse its final Regulatory Determinations that CCRs do not warrant regulation308

under RCRA Subtitle C. Even setting aside EPA's failure to comply with the Regulatory Flexibility Act as described above, the Proposal's Subtitle C option is fundamentally flawed because EPA lacks the authority to reverse its 1993 and 2000 Regulatory Dete rminations, both of which found that CCRs do not warrant Subtitle C regulation. Congress established a detailed process by which EPA could determine whether and how to regulate CCRs under RCRA Subtitle
C

- and without which EPA has no authority to impose S ubtitle C regulation on CCRs.

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06339

- 4 

### Organization 1 

### : Arizona Electric Power Cooperative, Inc. 

### Commenter 1 : Theresa D. Legere Commenter Type: Electric Utility Company
Classification: Substantive
Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.5 

### Comment Excerpt Text: 3) EPA’s proposed Subtitle C Option is arbitrary and capricious, an abuse of discretion, and
otherwise not in accordance with the law The Administrative Pr ocedure Act empowers courts to review “agency action, findings, and conclusions” if they are “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.”[Footnote 24: 5 U.S.C. § 706(2)(A).] Before taking an agency action, su ch as rule making, the agency is required to “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choices made.”[Footnote 25: Motor Vehicle Mfrs.
Ass'n of the U. S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77

L.Ed.2d 443 (1983).] The court must then review that explanation and evaluate “whether the
decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.”[Footnote 26: Id.]

A rule is arbitrary and capricious “if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation f

or its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”[Footnote 27: Id.]309

In this case, EPA’s action in proposing a final rule contrary to its earlier final determination regarding the Bevill Wastes in its Report to Congress is, first of all, “not in accordance with law.” The Bevill Amendment directed the EPA to complete a study considering all the listed factors equally and then make a single determination whether the CCRs should be regulated under Subtitle C. Once EPA made this determination, it had no authority to institute a notice of proposed rulemaking, and a reviewing court is likely to rule against the EPA. The Bevill
Amen dment does not provide for a reconsideration of that determination more than 30 years after the statute was enacted and more than 20 years after EPA’s final determination (in 1988) that the Bevill Wastes should not be regulated under Subtitle C.

Moreove r, “no provision of the Bevill Amendment assigns an absolute priority to any one [study] factor, including hazardousness.”[Footnote 28: See Environmental Defense Fund v. EPA, 852 F.2d 1309, 1314 (D.C. Cir. 1988) (discussing the Bevill Amendment in the cont ext of mining wastes). See also RCRA § 8002(n), 42 U.S.C. § 6982(n). (Congress mandated that the EPA Administrator should conduct a study evaluating the following eight factors and submit its findings in a Report to “the Committee on Environment and Public Works of the United States Senate and the Committee on Energy and Commerce of the United States House of Representatives”: 1) the source and volumes of CCR materials generated per year; 2) present disposal and utilization practices; 3) potential danger, i f any, to human health and the environment from disposal and reuse of such materials; 4) documented cases in which danger to human health or the environment from surface runoff or leachate has been proved; 5) alternatives to current disposal methods; 6)cos ts of such alternatives; 7) the impact of those alternatives on the use of coal and other natural resources; and 8) the current and potential utilization of such materials).] In fact, as pointed out by the District of Columbia Federal Court of Appeals in a n analogous discussion of mining wastes, the legislative history “strongly suggests that Congress designed the Bevill Amendment to break with the previous approach to regulation of hazardous industrial wastes.”[Footnote 29: Environmental Defense Fund v. EP A, 852 F.2d at 1314] The D.C. Court of Appeals elaborated as follows:

With respect to ordinary industrial wastes, the structure of Subtitle C manifests a congressional assumption that these wastes, if found to be “hazardous” [under the criteria for iden tifying and listing wastes], would also prove dangerous to health and environment. A finding of a hazardous characteristic was sufficient to trigger regulation. See 40 C.F.R. §§ 261.11(a)(1). While the § 8002(p) studies of [Bevill] wastes necessarily requi re an evaluation of hazardousness, the provisions mandating these studies nowhere mention “hazard.” In § 8002, Congress asks EPA to investigate risk or danger to human health and environment

- a context

- specific concept. This evinces a congressional understa nding that “hazardous” [Bevill] wastes might not prove dangerous. This understanding was most clearly expressed in the Conference Report discussing the later 1984 HSWA, § 3004(x):310

This amendment recognizes that even if some of the special study wastes a re determined to be hazardous it may not be necessary or appropriate, because of their special characteristics or other factors, to subject such wastes to the same requirements that are applicable to other hazardous wastes, and that protection of human hea lth and the environment does not necessarily imply the uniform application of requirements developed for disposal of other hazardous wastes. [See H.R.Conf.Rep. No. 1133, 98th Cong., 2d Sess. 93, reprinted in 1984, U.S.Code Cong. & Admin.News 5576, 5664.]

The legislative history of the Bevill Amendment confirms that Congress eschewed a narrow technical approach to imposition of Subtitle C controls, choosing to evaluate the need for regulations by [focusing] on the actual dangers posed by [Bevill] wastes. Congressman Bevill's discussion of the Amendment is replete with references to “the degree of hazard posed by these wastes” and the need to develop “meaningful regulation to deal with the truly hazardous waste products which threaten our communities.” 126 Cong.Rec. 3361 (Feb. 20, 1980) (remarks of Rep. Bevill) (emphasis added). The goal of the study of [Bevill] wastes was to “determine whether, if at all, these materials present any hazard to human health or the environment.” Id. (emphasis added). These and other passages make plain that, despite his use of the term “hazard,” Rep. Bevill was directing attention to the actual risk posed by the wastes. This approach is clearly at odds with EDF's interpretation of the statute as mandating Subtitle C regulation upon a finding of hazardousness.

The § 8002(p) study provision lists cost as an independent factor. During the discussion of the Amendment, Rep. Bevill stated, “[t]hese studies would include evaluation of the economic and environmental aspects of existi ng and alternative disposal and reuse options. EPA would also be required to focus on the impact of these alternatives on the use of our coal and other natural resources.” 126 Cong. Rec. 3361. These remarks confirm that Congress intended attention to

cost and the economic impact of regulatory controls in making a regulatory determination. The emphasis on economic factors is consistent with Congress' obvious goal in enacting the Bevill
Amendment

- to relieve the [Bevill

- waste industries] of the onerous economi c burden of stringent Subtitle C controls if at all possible. If [Plaintiff] deems undesirable separate consideration of the cost of regulation, this objection should be addressed to Congress and not to this court.[Footnote
30: Environmental Defense Fund v . EPA, 852 F.2d at 1314

- 1316.]

Likewise, EPA’s focus on the alleged hazardousness of CCRs, without giving equal priority to the negative impact on the beneficial use of CCRs if regulated under Subtitle C, is in clear violation of the language and legisl ative intent of the Bevill Amendment, which was in part to relieve the utility industry “of the onerous economic burden of stringent Subtitle C controls if at all possible.”[Footnote 31: Id.]311

Finally, if Congress had intended to give the EPA authority t o promulgate regulations or make periodic reviews and adjustments to the level of regulation for CCRs without EPA first submitting the statutorily mandated report to Congress examining the eight statutory factors,[Footnote 32: See n.28, supra] Congress wou ld have included such provision(s) in the statute as it did in other environmental quality statutes. For example, in the Clean Air Act, Congress directed the EPA to periodically review, revise, and publish air quality criteria for pollutants;[Footnote 33: 42 U.S.C. §7408] periodically review, revise, and publish the statutory list of hazardous air pollutants;[Footnote 34: 42 USC §7412(b)(2)] and at five year intervals, complete a thorough review of the criteria for pollutants published under section 7408 an d the national ambient air quality standards promulgated under section 7409 and make such revisions as may be appropriate.[Footnote 35: 42 U.S.C. §7409(d)]

In the Clean Water Act, Congress directed the EPA to review and revise its published water qualit y standards from time to time;[Footnote 36: 33 U.S.C. §1314(a)] review its published regulations for effluent limitations annually and revise them if appropriate;[Footnote 37: 33 U.S.C. §1314(b)] from time to time review, revise, and publish information on the processes or operating methods which result in the elimination or reduction of the discharge of pollutants;[Footnote 38: 33 U.S.C. §1314(c)] and from time to time, as technology and alternatives change, revise its published regulations establishing Fe deral standards of performance for new sources of pollution.[Footnote 39: 33 U.S.C. §1316]

For example, Arizona Electric Power Cooperative’s facility is regulated by the Arizona Department of Water Resources, the Dam Safety and Flood Mitigation Division , and the Arizona Department of Environmental Quality. Both agencies maintain rigorous compliance programs and conduct frequent inspections to ensure that applicable maintenance and safety standards, including groundwater monitoring are followed. The EPA a lso recently affirmed the structural integrity and proper operation of the impoundment through an independent assessment. This assessment resulted in a satisfactory rating at the AEPCO facility, which is the highest possible rating.

Because the Bevill A mendment was specific and limited in what it authorized the EPA to do and regarding Congress’ reasons for doing it the way it did, the EPA’s Proposed Rule is not in accordance with the law and is an abuse of the EPA’s discretion. Additionally, a court revi ewing under the Administrative Procedures Act is likely to find EPA’s Proposed Rule arbitrary and capricious because EPA has failed entirely to consider important aspects of the problem; because EPA is relying on factors in a way in which Congress has not intended it to consider them; and because EPA has offered an explanation for its decision that runs counter to the evidence before312

the agency.

For example, EPA’s proposed rule (1) is inconsistent with the Bevill Amendment’s directive that any final dete rmination not impair CCR beneficial use; (2) is at odds with Congress’s express directive that any regulatory program for CCRs not discourage the use of coal by imposing undue regulatory costs on the management of CCRs; (3) disregards the nearly unanimous views of the federal and state agencies, with which the Bevill Amendment directs EPA to consult in reaching a final regulatory determination, that Subtitle C regulation is not warranted for CCRs; (4) is inconsistent with EPA’s own findings that state progr ams can properly address CCR disposal practices under RCRA Subtitle D; and 5) inappropriately includes potential damage cases in its evaluation of the appropriate regulatory option for CCRs when the Bevill Amendment directs the Agency to evaluate only thos e instances where such danger has been proved when considering the “documented cases” of danger from the management of CCRs.[Footnote 40: See specific examples set out in NRECA’s Comments to this 2010 Proposed Rule, which are adopted and approved herein by reference.]

Because the EPA has relied on factors which Congress has not intended it to consider; entirely failed to consider important aspects of the problem; offered explanations for its decision that runs counter to the evidence before the EPA; and lacks the authority to reverse its 1993 and 2000 Regulatory Determinations, both of which found that CCRs do not warrant Subtitle C regulation, a reviewing court would likely find any EPA final rule under which Bevill Wastes are regulated
under Subtitle C to be arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with the law.[Footnote 41: Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).]

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final B evill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06356

- 2 

### 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:313

B. 42 U. S.C. § 6966(e) states EPA “shall conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of [RCRA]...including, where appropriate, investigating threatened plant closures or reductions in employment allegedly resulting from such administration or enforcement” (emphasis added). However, there is no evidence in the record that EPA has evaluated, much less calculated, the potential loss or shifts in employment which may result from administ ration or enforcement of the proposed rules. See generally 75 Fed. Reg. at 35143 (regulatory benefits to cost table excludes employment impact), 35224

- 230 (EPA’s analysis of “executive orders and laws addressed in the action” does not include § 6966(e)).

EPA’s failure to comply with § 6966(e) cannot be justified. First, the statutory command is clear and direct. Id. (EPA “shall conduct continuing evaluations” of job losses or shifts). Second, EPA is clearly on notice regarding the proposed rules’ potent ially devastating impact on American jobs, based on comments in this Docket from Congress and others. See Letter from Rep. Rick Boucher, et al. to Lisa Jackson (July 29, 2010)(“we have grave concerns that this proposal could destroy jobs and increase elect ricity rates”)(the Majority Letter); Letter from Sen. Robert Casey to Lisa Jackson (July 28, 2010)(proposed rules will cause substantial job losses and lead to plant
shut

- downs). Given the evidence in the record, EPA should comply with RCRA before taking

a ny of the actions proposed in this Docket

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06360

- 83 

### 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: The Clean Water Act provides additional protection of surface waters through federal and state water quality laws and requires mine operators to meet strict water quality standards in their surface water discharges. State water quality programs, along with the Federal Safe Drinking Water Act, offer further water quality protection (see 30 C.F.R. 816.42; 40 C.F.R. Part 434).

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06400

- 2 

### Organization 1 

### : Waste Management (WM)314



### 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 11.3 

### Comment Excerpt Text: We are surprised, however, by the false dichotomy posed in EPA’s proposal of two options to regulate CCRs when disposed: either as a Resource Conservation and Recovery Act (RCRA)
Subtit le C regulated hazardous waste or as a RCRA Subtitle D nonhazardous waste subject only to citizen suit enforcement, not permitting, at disposal facilities. RCRA does not compel this legal interpretation of EPA’s authority. Nor is it wise to view RCRA throu gh this narrow lens, because it creates an artificial constraint on EPA’s ability to fulfill its mission under RCRA to do what is necessary to protect human health and the environment. By taking the position that EPA’s authority under RCRA goes to only two relatively small waste streams, EPA abdicates responsibility to assure protection in the handling of the vast majority of wastes generated in the
U.S.

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 7.3.3 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 authori ty 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 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 the315

states have afforded communities unde r 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 th e 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_

- _Environmen tal_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 wi th programs implementing 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. 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. The commenter is also referred to Unit IX of the preamble for a discussion of how E Pa envisions States and EPA working together in the implementation of this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06415

- 3 

### Organization 1 

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

### Commenter 1 : John T. Heard Commenter Type: Trade Association
Classific ation: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Can or should EPA reverse its 1993/2000 Bevill regulatory determinations concerning CCRs?

EPA proposes two alternative regulatory approaches for the regulation of CCRs. The so called Subtitle C option would require EPA to reverse its prior August 1993 and May 2000 Regulatory Determinations for CCRs. For the following reasons, the VCA does not believe that the EPA can
do so.

In October of 1980, Congres s adopted the Bevill Amendment, which established a special process that EPA was required to follow before CCRs and the other special wastes could be regulated as hazardous wastes under Subtitle C of RCRA. The Bevill Amendment established a temporary exemp tion from regulation under Subtitle C, until the completion of a study and submittal of a report described below. Congress directed EPA to conduct a "detailed and comprehensive study" on the adverse effects on human health and the environment of CCRs and

o ther special wastes. EPA failed to meet the Bevill Amendment's statutory deadline of October 21. 1980 for publication of a Report to Congress on fossil fuel combustion wastes. In Gearhart v. Reilly, No. 91

- 2435 (D.D.C. June 30, 1992), EPA entered into a Co nsent Decree which divided316

fossil fuel combustion wastes into two categories. and agreed to follow the Bevill process separately for the two categories. On August 9, 1993, EPA issued a regulatory descrmination that regulation of four large volume fossil fu el combustion wastes from coal fired utilities (fly ash, bottom ash, boiler slag, and flue gas desulfurization waste) as hazardous is "unwarranted " under RCRA Subtitle C. In the second phase of the Bevill utility industry process, EPA addressed
issues of co

- management, ash derived from co

- burning of coal from non

- hazardous solid waste, ash derived from clean coal combustion, and combustion residues from burning oil and natural gas. EPA submitted its second utility Report to Congress on March 31. 1999. On A pril 25, 2000, EPA issued its Phase II Regulatory Determination. EPA concluded in the Phase II Bevill Regulatory Determination that hazardous waste regulation under Subtitle C for the remaining fossil fuel combustion wastes "[was] not warranted." With the issuance of the 2000 Regulatory Determination, the Bevill process for fossil fuel combustion wastes, including CCRs, was completed.

The special Bevill process established by Congress provided for a one

- time evaluation of CCRs and the other special wastes. The Bevill Amendment by its terms called for a "study " and a "report." The use of the singular, as well as the statutory context, means that Congress deliberately established a one

- time study and one

- time Report to Congress obligation. Similarly, Congres s called for a one

- time regulatory determination when it stated that "not later than six months after the date of submission of the applicable study " EPA should "either determine to promulgate regulations . . . or determine that such regulations are unwar ranted." Congress made it clear it was establishing a one

- time study, report and regulatory determination obligation when it required that the report and study be completed by a date certain, i.e . . October 21, 1980. Finally, the Bevill Amendment establis hed a temporary exemption from RCRA Subtitle C regulation for the special wastes, an approach consistent with a one

- time study, report and regulatory determination. Moreover, if Congress had intended to extend the Bevill process thirty years beyond the 198 0 date Congress established for completion of the Bevill study and Report, Congress would have done so explicitly. The fact that Congress did not do so further confirms that Congress intended for the Bevill process to consist of a one

- time report, study an d regulatory
determination for CCRs.

In addition, the D. C. Circuit Court of Appeals in Solile Corp. v. EPA, 952 F. 2d. 473 (D.C. Cir. 1991), ruled that "The statutory provision directing EPA to study Bevill wastes suggests by its
terms that a one

- time st udy is sufficient. " The court went on to state "this court's holding in EDF 11 secures EPA's position that a one

- time determination is sufficient " and "we clearly enough rejected the theory that Congress intended the coverage of the Bevill exclusion to e volve with time." In fact, in its briefs in the Solile case, EPA made the following statements about the Agency's interpretation of the Bevill amendment:

"Both the administrative record and Congressional intent clearly indicate that the Bevill
Amendment w as intended to provide a temporary exclusion, pending further study, over a fixed time period. Congress directed EPA to conduct a single study of wastes generated by mineral mining and processing facilities, because of concern that existing wastes might no t be readily amenable to Subtitle C controls and might pose relatively low hazard to human health and the environment. Moreover, contrary to some commenter's assertions, the statutory language includes explicit time limit on the Bevill exclusion, which app ly to the submission of the317

required Report to Congress and subsequent regulatory determination."

" ...From this evidence of congressional intent, EPA reasonably determined that Congress
authorized EPA to make a one

- time interpretation or snapshot of miner al processing wastes, rather than a continuing series of studies and regulatory determinations . . . . "

"There is nothing in the statute itself which suggests that the Bevill process should be an ongoing, evolving process, with updated reports to Congres s and regulatory determinations." EPA should not be allowed to reverse the position it previously took in a parallel Bevill rulemaking and before the D.C. Circuit.

Finally, even if EPA had the authority to reverse its August 1993 and May 2000 Bevill Regul atory Determinations (which it does not as demonstrated above), EPA has failed to go through the Bevill process before proposing a reversal of the Bevill Regulatory Determinations, and therefore cannot proceed with its Subtitle C option. The Bevill process as established by Congress must include each of the following steps:

1) EPA must study CCRs pursuant to eight study factors;

2) EPA must then submit a Report to Congress, i.e., a report on such study and the findings of the study to the House Committee on Energy and Commerce and the Senate Committee on Environment and Public Works; and

3) Following submission of the Report to Congress to the enumerated congressional committees, EPA must conduct public hearings and provide an opportunity for comment on t he Report, and then either determine to promulgate regulations under Subtitle C or determine that such regulations are not warranted.

4) If EPA determined that such regulations were warranted, EPA must then engage in a notice and comment regulation to pro mulgate the regulations.

EPA has failed to comply with this special Bevill process. First, EPA's purported analysis of the eight Bevill study factors as applied to CCRs is insufficient and superficial. Among other things, EPA is explicitly required to ev aluate the "costs of alternatives" to current disposal methods. EPA's evaluation of the costs to the industry of the Subtitle C options in the proposed rule is woefully lacking in scope and depth. Moreover, EPA has not even attempted to argue that it has

m et the Report to Congress prong of the Bevill process. Prior to EPA's proposal to reverse its 1993 and 2000 Regulatory Determinations and adopt a Subtitle C approach for CCRs, EPA has not prepared a Report, and did not submit a Report to the enumerated Con gressional committees before proposing to reverse its Regulatory Determinations in the proposed rule. In addition, EPA's proposal to reverse its 1993 and 2000 Regulatory Determinations is not based, as explicitly required by statute, on public hearings and public comment on the non

- existent Report to Congress. Therefore, EPA has not met its statutory obligation which conditions any Regulatory Determination on an evaluation of the results of such public hearings and any comments on the Report to Congress. Fi nally, EPA's June 21, 2010 Proposal envisions a
decision

- making process involving the simultaneous reversal of the prior Regulatory318

Determination for CCRs, the issuance of a new Regulatory Determination for CCRs, and the adoption of new Subtitle C regulati ons for CCRs. This accelerated approach violates the sequential nature of the Bevill process established by Congress, which provided for a Regulatory Determination to be followed at a later time by the issuance of regulations.

Response: The Agency acknow ledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill

Determinatio n. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 064 16

- 29 

### 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: 4.5 2.1.2 

### Comment Excerpt Text: In section I.D., p. 35136, Regulation of solid wastes under RCRA Subtitle D, the legal analysis claims that EPA does not have authority to establish na tionwide standards for non

- municipal solid wastes. It can be noted that States have generally adopted, as a minimum, the part 258 rules and incorporated them into their previously established programs. If EPA feels that it lacks authority to implement such an approach, there are a couple of tactics that could be used. One is to seek congressional authority for the approach. The other is to draft a rule similar to s. 40 CFR 761.77, TSCA coordinated approval, as a stopgap until EPA seeks and obtains federal a uthority to authorize State programs to regulate CCR waste disposal.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 32 

### 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: 4.5319



### Comment Excerpt Text: If EPA wants to maintain federal oversight in a Sub D context, it should be easy to draft rule language similar to the s. 40 CFR 761.77, authority for a TSCA coordinated approval, to establish as RCRA Sub D coordinated approval proces s.

Under this authority, State agencies would have primary responsibility to perform review and issue approvals/permits, but EPA Regions would review the proposed plants and the draft approvals/permits for compliance with their concerns and, if need be, issue a concurrence letter or similar regulatory communication. This approach could serve as a permanent arrangement or serve as a stopgap until EPA seeks and obtains federal authority to authorize State programs to regulate CCR waste disposal. It should m inimize workload on the Regional staff, utilize existing State authorities, staff, and procedures efficiently, reduce potential cost impacts on both state and federal programs, and maintain the current status of States being the primary contact and
enforce ment route for utility ash disposal sites.

EPA could still establish a set of requirements to be met, at a minimum, by CCR landfill operators. This would present a challenge and a target for State agencies to utilize in State rule revisions, and also pro vide substantive basis for States to impose requirements listed in federal requirements if State rules do not include them. This means that it should be possible for rapid implementation of the CCR rule change. If EPA was concerned about the content of Sta te rules including, at a minimum, all federal requirements, the rule could include a time limit for States to seek rule changes through their individual rule

- making procedures and demonstrate the achievement to the Regions.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06529

- 2 

### Organization 1 

### : NiSource Corporate Services 

### Commenter 1 : Dale A. Helmers Commenter Type: Electric Utility Company
Classification: Substantive Comment Catego ry: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The critical flaw in proposing the Subtitle C option is that it is premised on the notion that EPA is at liberty to reverse its final Regulatory Determination that CCRs do not warrant regulation
under Subtitle C of RCRA. Because the statute does not authorize EPA to reverse its final Regulatory Determination, EPA may not adopt the Subtitle C hazardous waste option for CCRs. Even assuming for purposes of argument that the statute did au thorize such reversal, EPA’s proposal to regulate CCRs under Subtitle C does not comport with the Bevill Amendment’s eight statutory study factors or the statutorily

- prescribed decision

- making process, and would be arbitrary and capricious. For example, th e Subtitle C option would adversely impact CCR beneficial use and impose unwarranted and excessive costs on the utility industry320

Response: The Agency acknowledges and appreciates the comment however the Agency is not pursuing a subtitle C rule for the management of CCR and as such this comment is outside the scope of the rulemaking.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06529

- 7 

### Organization 1 

### : NiSource Corporate Services 

### Commenter 1 : Dale A. Helmers Commenter Type: Electric Utility Company
Classificatio n: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: As demonstrated by these comments, many of the operations at electric generating facilities are very different then those at a typical RCRA hazardous waste generator or treatment/storage/disposal facility. As such, when the Subtitle C regulations were first promulgated and became effective in 1980, very few electric generating facilities believed themselves to be subject to them. Additionally because CC Rs were not subject to RCRA when it was initially promulgated, NiSource did not have a realistic, fair, or reasonable opportunity to comment on how these provisions affect its CCR management and disposal operations. For EPA to now disregard comments on tho se provisions as they relate to the special wastes subject to this rulemaking violates the requirements of notice and comment as provided by the Administrative and Procedures Act (5 U.S.C. § 553) and is arbitrary and capricious

Response: The Agency ackno wledges and appreciates the comment however the Agency is not pursuing a subtitle C rule for the management of CCR and as such this comment is outside the scope of the rulemaking.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06532

- 2 

### Organization 1 

### : Southern Illinois Power Cooperative 

### Commenter 1 : Leonard F. Hopkins Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: A major flaw in the Subtitle C option is t hat it is premised on the notion that EPA is at liberty to reverse its final Regulatory Determination that CCRs do not warrant regulation under Subtitle C of RCRA. Because the statute does not authorize EPA to reverse if final Regulatory Determination, EPA may not adopt the Subtitle C hazardous waste option for CCRs. Even assuming for purposes of argument that the statute did authorize such reversal, EPA’s proposal to regulate CCRs under Subtitle C does not comport with the Bevill Amendment’s statutorily

-321

pr escribed decision

- making process and would be arbitrary and capricious. For example, the Subtitle C option would cripple CCR beneficial use and impose unwarranted and excessive costs on the utility industry

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. F urthermore, EPA is not promulgating a subtitle C rule for the management of CCR, therefore this component pertaining to subtitle C are outside the scope of this rulemaking.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06532

- 7 

### Organization 1 

### : Southern Illinois Power Cooperative 

### Commenter 1 : Leonard F. Hopkins Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: As discussed below, the operations at these sources are very different then those at a typical RCRA source. Thus, these sources, and in particular SIPC, did not have a realistic, fair, or reasonable opportunity to comment on these provisions when they were first proposed. For EPA to now disregard comments on those provisions as they relate to the sources subject to this rulemaking violates the requirements of notice and comment as provided by the Administrative and Procedures Act (5 U.S.C. § 553) and is arbitrary and capricious

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06534

- 2 

### Organization 1 

### : Lafarge North America Inc. 

### Commenter 1 : Brian Gasiorowski on behalf of Craig S. Campbell Commenter Type: Beneficial User
Classification: Sub stantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Through the “Bevill amendment” to RCRA enacted in 1980, Congress prohibited EPA from regulating CCRs under Subtitle C unless and until EPA followed several steps and made certain findings.[Footnote 4: RCRA §§ 3001(b)(3)(A)(i), 8002(n).] Under the statutory mandate, EPA must first conduct a “detailed and comprehensive study” and submit a Report to Congress on the
adverse effects of CCRs.

Congress specified that the study must analyze many factors, including “the current and potential322

utilization of such ma terials.”[Footnote 5: RCRA § 8002(n)(8).] In 1999, EPA conducted such a study and issued a Report to Congress based on such a study. Congress further provided that after the issuance of such a Report to Congress, EPA was required to issue a “determination” (hereafter, “Regulatory Determination”) after public hearings and written comments. Congress specified that in the Regulatory Determination, EPA should

– based on the information developed in the Report to Congress

– either (i) determine to issue Subtitle C regulations for CCRs or (ii) determine that Subtitle C regulations are unwarranted. EPA completed this statutory process in 2000 under Administrator Browner, with its issuance of a Regulatory Determination finding that Subtitle C regulations for CCRs ar e unwarranted.[Footnote 6: 65 Fed. Reg. 32214 et seq., (May 22, 2000).]

As shown in the comments of the ACAA, Administrator Browner’s 2000 decision has had a salutary effect on CCR beneficial use practices: the percentage of CCRs beneficially reused has

r isen from twenty

- three percent (23%) to forty

- two percent (42%).[Footnote 7: ACAA Coal Combustion Products 2009 Production and Use Survey, October 29, 2010.] As explained throughout these comments, Lafarge has a vital interest in assuring that beneficial u ses of CCRs
continue in the United States.

EPA’s current “co

- proposal” contains a Subtitle C option and a Subtitle D option. As shown throughout these comments, Lafarge strongly prefers the approach of regulating CCRs under Subtitle D of RCRA over regulat ion under Subtitle C. For all the reasons set forth in the
comments on the co

- proposal filed by the Utilities Solid Waste Activities Group (“USWAG”),[Footnote 8: We have reviewed a final draft of the USWAG comments.] we believe that proper application of t he statutory factors based on the record before the agency compels the
conclusion that

– just as Administrator Browner found in 2000

– regulation of CCRs is unwarranted. We also endorse the portions of the USWAG comments explaining why EPA has
not followed the statutory process under the Bevill Amendment for subjecting CCRs to RCRA Subtitle C, and why any efforts by EPA to do so without performing a new study, issuing a new Report to Congress, and issuing a new, independent Regulatory Determination as a sep arate step, would be fundamentally flawed as a legal matter

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside t he scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06534

- 4 

### Organization 1 

### : Lafarge North America Inc. 

### Commenter 1 : Brian Gasiorowski on behalf of Craig S. Campbell Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:323



### Comment Excerpt Text: As EPA has neither performed nor completed a single one of these mandatory statutory steps before issuing its Subtitle C proposed regulations for CCRs, any final Subtitl e C regulations issued following the proposal would be fatally defective as a legal matter. Such a regulation would be vacated by a reviewing court under two longstanding Administrative Procedure Act (APA) standards. Such a final rule would be both “in exc ess of statutory jurisdiction, authority, or limitations,” and issued “without observance of procedure required by law.” 5 U.S.C. § 706.

We recognize that EPA may take the position that such complete disregard of statutorily

mandated steps and procedures could be deemed “harmless error,” possibly under the theory that interested parties had the opportunity to comment on the proposed rule. D.C. Circuit caselaw is clear, however, that when a statute mandates special procedural steps going beyond simple APA

n otice

- and

- comment rulemaking, an agency action taken in disregard of those special steps cannot be countenanced on the grounds of “harmless error.” (The APA provides that “due account shall be taken of the rule of prejudicial error.” 5 U.S.C. § 706.) Two i nstructive D.C. Circuit cases are Gerber v. Norton, 294 F.3d 173 (D.C. Cir. 2002), and Alabama Power v. FERC, 160 F.3d 7 (D.C. Cir. 1998). In Gerber, the Fish and Wildlife Service was required by statute to make an “independent finding as a prerequisite” t o issuing a certain type of permit. The Service had not made such an independent finding prior to processing the permit at issue. The Service argued before the Court that since the independent “finding” was essentially incorporated within the permit itself , the error was “harmless” under the APA. 294 F. 3d at 185.

The Court addressed the APA “prejudicial error” doctrine at some length, id. at 181

- 82. The Court concluded that the Service’s failure to follow a statutorily

- mandated step was reversible regardl ess of the alleged lack of prejudice. “Because the Service did not make the independent finding required by the ESA as a prerequisite to the issuance of an incidental take permit, the issuance of the permit violated the statute.” Id. at 185.

At issue in A labama Power was a section of the Federal Power Act that required FERC, “before prescribing any rules” of a certain type, to notify affected State commissions and seek their views and recommendations. 160 F.3d at 12. In issuing the rule under review, FERC had most clearly not provided such a prior notice to the State commissions. FERC argued that such a failure was “harmless” because the State commissions all eventually had notice through the rulemaking, and all had the opportunity to present their views. I d.

The D.C. Circuit addressed the APA “prejudicial error” rule in this context, and squarely rejected the notion that such a “belated notice” could suffice to meet the clear statutory command. Id. The Court accordingly vacated the rule under review. Id. at 14. The D.C. Circuit has often ruled that where an agency has clearly failed to comply with procedural steps demanded by statute, parties need not be put to any burden to establish potential harm to defeat an agency’s contention of lack of prejudicial e rror. See, e.g., Chamber of Commerce v. SEC, 443 F.3d 890, 904 (D.C. Cir. 2006) (and cases cited therein) (“The court has not required a particularly robust showing of prejudice . . .”)

In several cases cited by the Chamber of Commerce decision, the D.C. Circuit has repeatedly ruled that “if there is any uncertainty at all as to the effect” of the failure to follow statutorily

-324

prescribed procedures, agencies’ claims of harmless error must fail. Sprint v. FCC, 315 F.3d 369, 376 (D.C. Cir. 2003.) And in the EPA case Weyerhaeuser v. Costle, 590 F.2d 1011 (D.C. Cir. 1978), the Court summed up the appropriate standard as follows: “[I]f we cannot be sure that under the correct procedures the Agency would have reached the same conclusion, we cannot
characterize th e defect as harmless.” Id. at 1031. Manifestly, if EPA were to issue a final Subtitle C rule for CCRs based on the current proposal, great uncertainty would exist as to whether the result would have been the same if EPA had taken the numerous separate step s in the sequence specified in the statute. We believe one could never be sure that the result would have been the same, and that therefore Subtitle C rules that might be issued as a result of the current truncated process would certainly fail upon judicia l review

Response: The Agency acknowledges and appreciates the comment. In that the Agency is pursuing a subtitle D regulatory strategy for CCR, the commenter’s comments dealing with subtitle C options are outside the scope of this final rulemaking.



### C omment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06555

- 18 

### Organization 1 

### : Saint

- Gobain Corporation / CertainTeed Corporation 

### Commenter 1 : Lauren P. Alterman Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: CertainTeed objects to EPA’s jurisdictional basis for the Proposed CCR Rule or the promulgation of a Final Rule. The Solid Waste Disposal Act specifically directs EPA to undertake a detailed study and report on CCRs (4 2 U.S.C.§ 6982(n)), and “after public hearings and opportunity for comment, either determine to promulgate regulations foreach waste listed in subparagraph (n) of this paragraph or determine that such regulations are unwarranted.” Id. §6921(b)(3)(c). EPA u ndertook its study and determined that regulations were unwarranted in 2000. 75 Fed. Reg. at35137. The statute does not provide for a subsequent reconsideration or revisitation of that determination. EPA lacks authority to change course and now, more than ten years later, determine that regulations are warranted absentnew legislation allowing it to do so

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06555

- 9 

### Organization 1 

### : Saint

- Gobain Corporation / CertainTeed Corporation 

### Commenter 1 : Lauren P. Alterman325

Commenter Type: Beneficial User
Classification: Substantive
Comme nt Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: II. EPA IS REQUIRED TO FOLLOW THE MANDATORY STATUTORY PROCESS FOR
REVISING ITS PRIOR BEVILL REGULATORY DETERMINATION AND ISSUING
SUBTITLE C REGULATIONS FOR COAL COMBUSTION RESIDUES.

Before EPA may propose a rule to regulate coal combustion residuals (CCRs) under RCRA Subtitle C, it must (1) first conduct “a comprehensive study and submit a report on the adverse effects on human health and the environment, if any, of the dis posal and utilization of” CCRs to Congress; (2) receive comments and hold public hearings on that report to Congress (RTC); and (3) then issue a regulatory determination as to whether such regulation is warranted based on the “information developed or accu mulated pursuant to such study, public hearings, and comment.” 42 U.S.C. §§ 6921(b)(3)(C), 6982(n); American Portland Cement Alliance v. EPA, 101 F.3d 772, 777 (D.C. Cir. 1996). Only after completing these preliminary steps may EPA propose regulations unde r Subtitle C for CCRs. This procedural mandate is reflected in the plain text of RCRA, court decisions and EPA’s prior consistent interpretation and practice with respect to Bevill Amendment wastes. EPA has not satisfied any of these statutory prerequisite s to support its proposal either to revise its prior regulatory determinations not to regulate CCRs under Subtitle C, or to promulgate new Subtitle C rules for CCRs. The procedures for issuing rules to regulate CCRs under Subtitle C are set forth in sectio ns 3001(b)(3)(C) and 8002(n) of the SDWA, 42 U.S.C. § 6921(b)(3)(C), 6982(n). The first step is for EPA to conduct a “detailed and comprehensive study and submit a report on the adverse effects on human health and environment, if any, of the disposal and u tilization of” CCRs. 42 U.S.C. § 6982(n) The section specifies that the study must include an analysis of eight different issues and requires that, when complete, the study and findings be submitted to two different Congressional committees. Id.; 65
Fed. R eg. 32218 (describing procedural and substantive requirements for preparing and submitting RTCs). Second, no later than six months after submission of the study and after public hearings and opportunity for comment, EPA must “either determine to promulgate regulations under [Subchapter C] or determine that such regulations are unwarranted.” 42 U.S.C. § 6921(b)(3)(C). EPA’s determination “shall be based on information developed or accumulated pursuant to such study, public hearings, and comments.” Id. (empha sis added). Thereafter, if EPA determines that such regulations are warranted, it must initiate notice and comment rulemaking. See American Portland Cement Alliance, 101 F.3d at 777 (describing how RTC and regulatory determination precede rulemaking to est ablish Subtitle C regulations). Taken together, these provisions mandate that EPA (1) conduct a study of the adverse effects, if any, of the disposal of CCRs on human health and the environment; (2) submit the study to Congress; (3)
determine whether to is sue regulations for the disposal of CCRs; (4) base that determination on the study submitted to Congress and the information gathered in public hearings and comment; and (5) if EPA determines that Subtitle C regulations are warranted, engage in notice and comment rulemaking to promulgate the regulations. See In re: Leed Foundry, Inc., 13 E.A.D. 100, RCRA (3008) Appeal No. 07

- 02 (Feb. 20, 2008) at 9

- 10 (describing preparation and submission of report to Congress as “statutory prerequisite” to issuance of reg ulatory326

determination). EPA has not complied with any of these requirements to support the proposed revision to its prior Bevill determination regarding the need to regulate the disposal of CCRs and its proposed Subtitle C regulations. EPA has prepared two previous RTCs and issued two regulatory determinations with respect to fossil fuel combustion wastes.[Footnote 1: Section 3001(b)(3(A) exempts from regulation (until EPA complies with section 3001(b)(3)(C)) “fly ash waste,bottom ash waste, slag waste and flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels.” CCRs are a subset of these wastes.] In 1988, EPA submitted its first RTC related to fossil fuel combustion waste, limited to an analysis of CCRs
from el ectric utilities. See 58 Fed. Reg. 42466 (Aug. 9, 1993). This was followed by EPA’s regulatory determination that regulation of these wastes under Subtitle C was not warranted. Id.
EPA issued a second RTC for all other fossil fuel combustion wastes in Marc h 1999. See http://www.epa.gov/osw/nonhaz/industrial/special/fossil/volume_1.pdf. EPA subsequently issued its regulatory determination regarding the wastes evaluated in this RTC. See 65 Fed. Reg. 32214 (May 22, 2000). In this regulatory determination, EPA concluded, first, that all fossil fuel combustion wastes should remain exempt from regulation under Subtitle C, and, second, that it would develop Subtitle D regulations for CCRs disposed of in landfills or surface impoundments
or used to fill surface or u nderground mines. Id. at 32215. EPA has not issued any such regulations and EPA has not indicated that any regulations were, or would be required for CCRs that were not landfilled or used to fill surface or underground mines. EPA simply never contemplated, nor thought it was necessary to regulate CCRs that are encapsulated in products, such as CertainTeed’s fiber cement. In support of its new proposal to regulate disposal of CCRs under Subtitle C, EPA properly recognizes that it must revise its two prior re gulatory determinations. See 75 Fed. Reg. 35419. EPA, however, has not undertaken the required steps for a change. Most significantly, EPA has not prepared a new study under section 8002(n) regarding the impacts of disposal which includes an evaluation of the eight statutory criteria. Having failed to conduct that study, EPA has neither prepared nor submitted a RTC setting forth its findings. EPA also has failed to base its proposed revision on its earlier regulatory determinations, accepted comment, or hel d public hearings on the RTC. As such EPA has failed to comply with the procedural requirements of section 3001(b)(3)(C). Section 8002(n)’s requirement to conduct and submit a RTC, and the parallel requirement in section 3001(b)(3)(C) to base its regulator y determination on a RTC, are not a one time obligation that, once completed, need never comply with again. Rather, these requirements are continuing obligations that EPA must follow each time it desires to revise a regulatory determination. While section 8002(n) calls for a RTC to be completed by October 1980, the inclusion of that deadline cannot reasonably be interpreted to mean that Congress only mandated that EPA conduct the study once. Rather, section 8002(n) must be read in conjunction with section 3 001(b)(3)(C), which plainly states that EPA’s regulatory determination “shall be based on information developed or accumulated pursuant to such [RTC], public hearings, and comment.” (emphasis added) See also 65 Fed. Reg. 32218

- 19 (describing statutory requ irements for issuing regulatory determinations under section 3001(b)(3)(C)). The use of the term “shall” in this section clearly indicates that EPA has no discretion, but must base each regulatory determination on a RTC. The text of section 3001(b)(3)(A) s upports this conclusion by exempting from regulation the Bevill wastes

– including fossil fuel combustion wastes

- “until at least six months after the date of submission of the applicable study required to be conducted [under section 8002] and after promu lgation of regulations in accordance with subparagraph (C).” 42 U.S.C. § 6921(b)(3)(A). In other words, any decision to regulate Bevill wastes under Subtitle C must be preceded by (1) the RTC, (2) the327

regulatory determination, (3) comments on the RTC, and (4) public hearings. EPA has not completed any of these required steps in support of its most recent proposal.

EPA also cannot claim that it has satisfied these requirements through the submission of its two prior RTCs regarding fossil fuel combustion was tes in 1988 and 1999. Those RTCs may have sufficed for EPA’s earlier regulatory determinations, but a new study must be conducted and a new report submitted to Congress each and every time EPA proposes to revise or modify its earlier regulatory determinati on. Indeed, EPA cannot credibly claim that its current proposal is supported by its earlier RTCs such that it is relieved from the obligation to conduct the necessary study, collect the required data and prepare a new RTC on which it must accept comment an d hold public hearings. It is abundantly clear that EPA is not basing its proposed revision to the regulatory determination on the two prior RTCs (the latest of which is 11 years old). Rather, EPA is relying on the new data and information that has been ob tained since its earlier determinations and presented in the proposal. See 75 Fed. Reg. 35149

- 59. As such, EPA has not complied with section 3001(b)(3)(C)’s requirement to base its regulatory determination on the RTC mandated by section 8002(n) (along with information obtained through public comment and hearings on that RTC). EPA’s prior statements and its consistent practice in issuing Bevill regulatory determinations confirm that the Agency has always interpreted the Bevill Amendment
to mandate that it fi rst conduct and submit a RTC, accept comments and hold public hearings on the RTC, and then base its regulatory determinations on that RTC. Indeed, each prior Bevill regulatory determination was preceded by these very steps, and was based upon and supporte d by a unique and specially prepared “detailed and comprehensive” RTC. For example, the two prior regulatory determinations for fossil fuel combustion residues were preceded by and based upon such RTCs. See 58 Fed. Reg. 42466 (Aug. 9, 1993) (regulatory det ermination for CCRs generated at electric utilities, preceded by 1988 Report to Congress); 65 Fed. Reg. 32214 (May 22, 2000) (regulatory determination for wastes from combustion of fossil fuels, preceded by 1999 Report to Congress); see also In re: Leed Fo undry, Inc., 13 E.A.D. 100, RCRA (3008) Appeal No. 07

- 02 (Feb. 20, 2008) at 7 (describing history and basis of two prior fossil fuel combustion wastes regulatory determinations). Indeed, in the consent decree entered in Gearhart v. Reilly, C.A. No. 91

- 2435 (D.D.C. June 30, 2992), EPA specifically acknowledged that, before it could issue its regulatory determination for all fossil fuel combustion wastes it needed first to conduct and submit the required Report to Congress). The regulatory determinations for the other Bevill wastes were similarly preceded by and based upon a RTC. See 60 Fed. Reg. 7366 (Feb. 7, 1995) (regulatory determination for cement kiln dust preceded by December 31, 1993 RTC); 53 Fed. Reg. 25466 (July 6, 1988) (regulatory determination for crude oil and natural gas waste preceded by December 1987 RTC); 56 Fed. Reg. 27300 (June 13, 1991) (regulatory determination for 20 mineral processing wastes preceded by July 1990 RTC); 51 Fed. Reg. 24496 (July 3, 1986) (regulatory determination for extra ction and beneficiation waste preceded by December 1985 RTC). As this history demonstrates, EPA has always prepared and relied upon a RTC prior to issuing a regulatory decision as to a Bevill waste without first preparing and relying upon a RTC. This consi stent practice demonstrates EPA’s understanding that the RTC is a mandatory prerequisite for any regulatory determination.

EPA’s recent proposal cannot suffice for the required RTC and associated process for issuing regulatory determinations for Bevill wa stes. As EPA has stated: In the Bevill Amendment, Congress created a special process for the Agency to determine which wastes, if any, should328

retain the temporary statutory exclusions from RCRA Subtitle C. This process is similar to the rulemaking process, although it entails additional steps. In 1980, Congress required EPA to study certain wastes, . . . conduct a detailed and comprehensive study and submit it to Congress, conduct public hearings and accept public comments, and finalize its decision in a Re port to Congress. See Complainant’s Brief In Support of Its Notice of Appeal to the Environmental Appeals Board in In re Leed Foundry, Inc., RCRA (3008) Appeal No. 07

- 02 (EAB) (Jul. 2, 2007) (available at http://yosemite.epa.gov/OA/EAB_WEB_Docket.nsf/Filin gs%20By%20Appeal%20Number/D64 D0A837C2CC2958525730C0075BDCA?OpenDocument). In this definitive statement, EPA thus correctly recognized that the process for adopting a regulatory determination differs from and entails additional Congressionally

- mandated ste ps compared to the rulemaking process under RCRA. See also American Portland Cement Alliance, 101 F.3d at 777 (distinguishing between process for adopting a Bevill regulatory determination and regulations implementing and following such a determination). C ongress had a good reason for creating this distinction and the additional procedures for issuing regulatory determinations

– namely that the potential economic impacts of regulating high volume, low toxicity wastes like CCRs warrant extra study and
carefu l consideration. In light of these concerns, EPA cannot simply ignore these requirements in its rush to modify its earlier determinations and promulgate Subtitle C regulations for CCRs. EPA’s failure to follow the required process renders the proposed revi sion to its earlier regulatory determinations and proposed Subtitle C regulations arbitrary, capricious and contrary
to law.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preamble for a dis cussion on our decision to regulate CCR under
subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory proce dures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06726

- 4 

### 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:
Other Sections: 2.1.1 

### Comment Excerpt Text: EPA's regulatory process is contrary to the intent of Congress for a one

- time finding under the
Bev ill Amendment whether CCRs should be designated as hazardous wastes. Congress did not intend for an ongoing 30

- year study of coal ash. An exhaustive and detailed study was completed, findings reported to Congress in 2000, and any changes to these findings must require a revisit with Congress before creating new regulations, as described below.

Congress enacted RCRA in 1976. Subtitle C of RCRA, 42 U.S.c. §§ 6921

- 6931, generally established a "cradle to grave" management scheme governing the generation, tra nsportation,329

treatment, storage and disposal of the hazardous wastes that would be subject to this stringent RCRA Subtitle C program.

On December 18, 1978, EPA proposed regulations identifying hazardous waste under RCRA Subtitle C. 43 Fed. Reg. 58,946 (D ec. 18, 1978). EPA proposed to regulate wastes from fossil fuel combustion, including CCRs, as well as certain other wastes, as "special wastes." 43 Fed. Reg. at 59,015. The EPA 1978 proposal explained that special wastes would be subject to fewer regulato ry requirements because they were generated in "very large volumes," "posed relatively low" risks, and "were not amendable [sic] to the control techniques" proposed for hazardous waste treatment, storage and disposal. 43 Fed. Reg. at 58,992.

EPA abandoned the special waste concept, however, when the agency promulgated final hazardous waste regulations in 1980. 45 Fed. Reg. 33,084 (May 19, 1980). Thus, EPA's final rule, which was scheduled to take effect on November 19, 1980, would have treated CCRs as

any other waste, subject to the full requirements of the final RCRA Subtitle C regulations.

Recognizing the absurdity of regulating CCRs and other special wastes in such an inflexible, onerous manner, Congress stepped in before the effective date of the fina l Subtitle C regulations and provided relief in October 1980 with the Bevill Amendment. See 42 U.S.C. §§ 6921(b)(3)(A), (c)6982(n). As a counterpoint to EPA's prior actions described above, the Bevill Amendment established a special process, which EPA was required to follow before CCRs and the other special wastes could be regulated as hazardous wastes under Subtitle C of RCRA. See also, EDF v. EPA, 852 F.2d 1309, 1314 (D.C. Cir. 1988) ("Indeed, our reading of the statute and legislative history strongly su ggests that Congress designed the Bevill Amendment to break with the previous approach to regulation of hazardous industrial wastes.").

First, the Bevill Amendment established a temporary exemption from regulation under Subtitle C, until the completion o f the study and submittal of the report described below. 42 U.S.C. § 6921(b)(3)(A). Second, Congress directed EPA to conduct a "detailed and comprehensive study" on the adverse effects on human health and the environment of CCRs and other special wastes.
4 2 U.S.C. § 6982(n). In contrast to the manner in which EPA otherwise was going to decide how to determine if wastes were hazardous and subject to Subtitle C under the regulations that were to become effective on November 19, 1980, Congress expressly direct ed that the Bevill study include an analysis of: 1. the source and volumes of CCRs generated per year; 2. present disposal and utilization practices; 3. potential danger, if any, to human health and the environment from the disposal and reuse of
such ma terials; 4. documented cases in which danger to human health or the environment from surface runoff or leachate has been proved; 5. alternatives to current disposal methods; 6. the costs of such alternatives; 7. the impact of those alternatives on the use of coal and other material resources; and 8. the current and potential utilization of such materials.

Third, Congress directed that EPA publish a report on such study, which was to include330

"appropriate findings," not later than 24 months after Octob er 21, 1980. Id The Bevill Report
was to be submitted to the Committee on Environment and Public Works of the United States Senate and the Committee on Energy and Commerce of the United States House of Representatives. Id

Fourth, the Bevill Amendment furt her stipulated that within six months after the Report to Congress, EPA, after public hearings and the opportunity for comment, had to determine whether to promulgate regulations under Subtitle C for CCRs, or determine that such regulations were

unwarrante d. 42 U.S.C. § 6921(b)(3)(C). Finally, if EPA determined that such regulations were warranted, EPA could then engage in notice and comment rulemaking to promulgate the Subtitle C regulations. See American Portland Cement Alliance v. EPA, 101 F.3d 772, 775 (D.C. Cir. 1996) ("Section 3001(b)(3)(C) provides that the product of the notice and comment process [on the Report to Congress] will be a determination of whether regulation is warranted in the future, not regulations themselves.").

EPA failed to meet t he Bevill Amendment's statutory deadline of October 21, 1980 for publication of a Report to Congress on fossil fuel combustion wastes. In Gearhart v. Reilly, No.
91

- 2435 (D.D.C. June 30, 1992), EPA entered into a Consent Decree which divided fossil fuel

co mbustion wastes into two categories, and agreed to follow the Bevill process separately for the two categories. EPA had actually published its First Report to Congress on fossil fuel combustion wastes from coal fired utilities on March 8, 1988. 53 Fed. Reg . 9976 (Mar. 28, 1988). On August 9,1993, EPA issued a regulatory determination that regulation of four large volume fossil fuel combustion wastes from coal fired utilities (fly ash, bottom ash, boiler slag, and flue gas desulfurization waste) as hazardous is "unwarranted" under RCRA Subtitle C. 58 Fed. Reg. 42,466.

In the second phase of the Bevill utility industry process, EPA addressed issues of comanagement, ash derived from co

- burning of coal from non

- hazardous solid waste, ash
derived from clean coa l combustion, and combustion residues from burning oil and natural gas. EPA submitted its second utility Report to Congress on March 31, 1999. 64 Fed. Reg. 22,820 (April 28, 1999). On April 25, 2000, EPA issued its Phase II Regulatory Determination. 65 Fed

. Reg. 32,214 (May 22, 2000). EPA concluded in the Phase II Bevill Regulatory Determination that hazardous waste regulation under Subtitle C for the remaining fossil fuel combustion wastes was "not warranted." 65 Fed. Reg. at 32,215.

An analysis of the B evill Amendment reveals that the above

- described special Bevill process established by Congress provided for a one

- time evaluation of CCRs and the other special wastes. First, the Bevill Amendment by its terms calls for a "study" and a "report." 42 U.S.C. §§ 6982(n). The use of the singular, as well as the statutory context, means that Congress deliberately established a one

- time study and one

- time Report to Congress obligation. Similarly, Congress called for a one

- time regulatory determination when it stat ed that "not later than six months after the date of submission of the applicable study" EPA should "either determine to promulgate regulations ... or determine that such regulations are unwarranted." 42 U.S.C. § 6921(b)(3)(C).

Second, Congress made it cl ear it was establishing a one

- time study, repOli and regulatory331

determination obligation when it required that the report and study be completed by a date certain, i.e., October 21, 1980. 42 U.S.C. § 6982(n). Finally, the Bevill Amendment established a

tem porary exemption from RCRA Subtitle C regulation for the special wastes, an approach
consistent with a one

- time study, report and regulatory determination. 42 U.S.C. § 6921(b)(3)(A).

Moreover, if Congress had intended to extend the Bevill process thirty years beyond the 1980 date Congress established for completion of the Bevill study and Report, Congress would have done so explicitly. That Congress did not do so further confirms that it intended that the Bevill process consist of a one

- time report, study and regulatory determination for CCRs. Thus, with the issuance of the 2000 Regulatory Determination, the Bevill process for fossil fuel combustion wastes, including CCRs, was completed. For all the above reasons, the Bevill Amendment
established a one

- tim e study, report and regulatory determination for CCRs. Direction to EPA was made clear many years ago: conduct a study, determine whether CCR's should be regulated as a hazardous waste, report to Congress and then act accordingly. EPA completed their assig ned work and reported to Congress that CCRs should not be regulated as Subtitle C hazardous wastes. EPA cannot now decide on its own to change its mind, contrary to Congressional intent and without any Congressional reporting, consultation or direction, an d simply promulgate new hazardous waste regulations

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the

scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06827

- 1 

### Organization 1 

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

### Commenter 1 : Kenneth E. Raymond Commenter Type: Electric Utility Company
Classification: Substantive
Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.3.2 

### Comment Excerpt Text: 1. The Proposed Rule Arbitrarily Regulates the Electric Power Sector While Excluding Other Industries That Generate and Dispose of CCRs
Under the Subtitle C option, CCRs that are generated and disposed in landfills or surface impoundments by electric utilities and independent power producers would be regulated as a listed hazardous waste (i.e. so

- called "SOOI" waste). As such, CCRs and the landfills or surfa ce impoundments in which they are disposed would be subject to hazardous waste regulation. Conversely, CCRs that are generated and disposed by other industry sectors would not be subj ect to regulation under the proposed rule pursuant to 40 CFR 261.4(b)(4) (ii) and 40 CFR 261.50(b)(4). Under the Subtitle D option, CCRs that are generated and disposed in landfills or surface332

impoundments by electric utilities and independent power producers would be regulated as a

non

- hazardous solid waste. As such, any landf ill or surface impoundment in which CCRs are disposed would be subj ect to certain minimum national design and operational standards for those types of disposal units. Conversely, it appears that CCRs that are generated and disposed by industries outside t he electric power sector would not be subject to regulation under the proposed rule, although there is no explicit language to that effect in the proposed rule itself at 40 CFR 257.40(a). Instead, OG&E is relying on the language in the summary section of t he proposed rule in which the Agency states that it is proposing to regulate CCRs to address the risks from the disposal of CCRs generated from the combustion of coal at electric utilities and independent power producers. Unlike earlier rulemaking efforts under Subtitle C in which the Agency promulgated rules to regulate certain listed hazardous wastes from non

- specific sources without regard to the industries that generated them, in these proposed rules, the Agency has somehow determined that CCRs generate d by electric utilities and independent power producers pose a greater threat to human health and the environment than those generated by other industries. This is a radical departure from the Agency's historical approach in regulating listed hazardous was tes in that, until now, it did not matter which industry generated the wastes; if it met the listing criteria, the wastes were regulated. Similarly, it did not matter which industry disposed of non

- hazardous solid wastes in landfills; if such wastes were d isposed of in this manner, the landfills were regulated pursuant to 40 CFR Part 257, regardless of who owned or operated them. Thus, it appears that the Agency has elected not to include other industries that utilize coal as a
fuel source from which CCRs a re generated and disposed. If CCRs pose a threat to human health and environment as the Agency now asserts, it shouldn't matter which industry generates and disposes of them; if any industries are subject to the proposed rule, then all industries that

gene rate and dispose of CCRs should be subject to the proposed rule. Nowhere in the proposed rule does the Agency provide a technical explanation why CCRs generated by the electric power sector are different in their physical or chemical composition
than those that are generated by other industry sectors such that they warrant regulation. The Agency likewise does not provide any technical explanation why landfills or surface impoundments owned and operated by the electric power sector are designed, constructed and operated differently than those of other industry sectors such that they warrant regulation. In the absence of any such explanation, the proposed rule is arbitrary and capricious in that its scope is narrowly written to regulate CCRs generated and disp osed by the electric power sector while excluding other industry sectors that also generate and dispose of CCRs. In that regard, the Agency should amend the proposed rule by removing any exclusion that unfairly favors other industries that generate and dis pose of CCRs, thereby subjecting all industries that generate and dispose of CCRs to any final rule that comes from this rulemaking effort.

Response: The Agency acknowledges and appreciates the comment. EPA is promulgating a subtitle D rule for the disp osal of CCR in surface impoundments and landfills and as such, comments pertaining to the subtitle C option for the management of CCR is outside the scope of this rulemaking.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06835

- 1 

### Organization 1 

### : U.S. Senate333



### Commenter 1 : Kyle D. Miller on behalf of James M. Inhofe Commenter Type: Federal Elected Official
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: On July 29, 20 I0, I j oined a number of my Senate colleagues to oppose, for a variety of reasons, the regulation of CCRs under RCRA Subtitle C. I write to raise a more fundamental concern with the proposed Subtitle C option. The Subtitle C option assumes that EPA can summarily reverse its final 2000 Regulatory Determination that CCRs do not warrant hazardous waste regulation, an action that I do not believe EPA has the authority to undertake.

Before making any final regulatory determination for CCRs, Congress, through the l3ev ill Amendment, directed EPA to first study CCRs pursuant to the eight statutory study factors and then "publish a report on such study, which shall include appropriate findings." [Footnote 1: RCRA Section 8002(n).] Such "study and findings shall be submitt ed to the Committee on Environment and Public Works or the United States Senate and the Committee on Energy and Commerce of the United States House of Represel1tatives..· [Footnote 2: Id.] Following submission of the report to the appropriate Congressional Committees. the statute requires that EPA conduct public hearings and provide an opportunity for comment on the Report to Congress, and then either determine to promulgate regulations" for CCRs under RCRA Subtitle C or determine that such regulations are unwarranted. [Footnote 3: RCRA Section § 3001(bX3XC).] Following this process, EPA is directed to publish its regulatory determination, "which shall be based on information developed or accumulated pursuant to such study, public hearings and comment in the Federal Register accompanied by an explanation and justification of the reasons for it. [Footnote 4: Id.]

EPA completed this statutory decision

- making process for CCRs in 2000 when it issued its final Bevill Regulatory Determination concluding, based on its 1999 Report to Congress and public hearings and comments on that report, that CCRs do not warrant regulation under RCRA Subtitle C. The statute does not authorize EPA to decide independently to revisit this decision and reverse its final CCR Regulator y Determination under a process of its own creation.

EPA's implicit assumption that it can proceed with the Subtitle C option, that it could issue a new regulatory determination for CCRs without first providing Congress with the statutorily required

repo rt on its recommendation, is extremely troubling. The statute is clear regarding such action: prior to making a final regulatory determination for CCRs, EPA is required to provide both the Senate Environment and Public Works Committee and the House Energy and Commerce Committee a report detailing its initial regulatory recommendation. The statute also makes clear that any final regulatory determination must be based on such Report to Congress. This process is critical to ensure that Congress retains its ove rsight role of EPA's deliberative process under which it determines whether and how to regulate CCRs. EPA has not prepared a Report to Congress informing the relevant Congressional Committees of jurisdiction that the Agency
intends to reverse course and re gulate CCRs under RCRA Subtitle C.334

This failure is especially troubling given that both an earlier 1988 Report to Congress and its second 1999 Report to Congress made clear that CCRs do not warrant regulation under RCRA's Subtitle C hazardous waste progr am and that EPA did not intend to pursue this regulatory path. Now, more than ten years after determining that CCRs do not warrant regulation under Subtitle C, EPA is proposing to reverse that decision without explaining its reasoning to Congress as requir ed by the statute. This failure deprives Congress of its statutorily

- prescribed oversight role to be fully informed of any such recommendation so that it can evaluate and respond, as appropriate, to the Agency's recommended course of action before EPA make s a final regulatory determination for CCRs. Such an approach is inconsistent with the statute which requires that any final regulatory determination be based on the Report to Congress.

As the Ranking Member of the Senate Environment and Public Works Comm ittee, I am deeply troubled by both EPA's assumption that it can summarily reverse its final Regulatory Determination for CCRs and with its apparent conclusion that it can do so without adhering to the statutorily prescribed procedures for making such a de cision, including the publication of a Report to Congress informing the relevant Congression a l committees of jurisdiction of the Agency's initial recommendation. I therefore believe EPA cannot pursue the Subtitle C option for CCRs set forth in the recent p roposal

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time. Moreover, since the Agency is finalizing a subtitle D rule for managing the disposal of CCR in surface impoundments and landfills, any comments on the proposed regulation of CCR under subtitle C of RCRA are outsi de the scope of this rulemaking.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06857

- 9 

### Organization 1 

### : CertainTeed Gypsum, Inc. 

### Commenter 1 : Lauren P. Alterman Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Co ntext Assigned/Due:



### Comment Excerpt Text: III. EPA IS REQUIRED TO FOLLOW THE STATUTORY PROCESS FOR REVISING ITS
PRIOR BEVILL REGULATORY DETERMINATION AND ISSUING SUBTITLE C
REGULATIONS FOR COAL COMBUSTION RESIDUES.

Before EPA may propose a rule to regulate coal combustion residuals (CCRs) under RCRA Subtitle C, it must (1) first conduct “a comprehensive study and submit a report on the adverse effects on human health and the environment, if any of the disposal and ut ilization of” CCRs to Congress; (2) receive comments and hold public hearings on that report to Congress (RTC); and (3) then issue a regulatory determination as to whether such regulation is warranted based on the335

“information developed or accumulated purs uant to such study, public hearings, and comment.” 42 U.S.C. §§ 6921(b)(3)(C), 6982(n); American Portland Cement Alliance v. EPA, 101 F.3d 772, 777 (D.C. Cir. 1996). Only after completing these preliminary steps may EPA propose regulations under Subtitle C for CCRs. This procedural mandate is reflected in the plain text of RCRA, court decisions and EPA’s prior consistent interpretation and practice with respect to Bevill Amendment wastes. EPA has not satisfied any of these statutory prerequisites to support its proposal both to revise its prior regulatory determinations not to regulate CCRs under Subtitle C and to promulgate new Subtitle C rules for CCRs.

The procedures for issuing rules to regulate CCRs under Subtitle C are set forth in sections 3001(b)(3 )(C) and 8002(n) of the SDWA, 42 U.S.C. § 6921(b)(3)(C), 6982(n). The first step is for EPA to conduct a “detailed and comprehensive study and submit a report on the adverse effects on human health and environment, if any, of the disposal and utilization o f” CCRs. 42 U.S.C. § 6982(n). The section specifies that the study must include an analysis of eight different issues and requires that, when complete, the study and findings be submitted to two different Congressional committees. Id.; 65 Fed. Reg. 32218 ( describing procedural and substantive requirements for preparing and submitting RTCs). Second, no later than six months after submission of the study and after public hearings and opportunity for comment, EPA must “either determine to promulgate regulation s under [Subchapter C] or determine that such regulations are unwarranted.” 42 U.S.C. § 6921(b)(3)(C). EPA’s determination “shall be based on information developed or accumulated pursuant to such study, public hearings, and comments.” Id. (emphasis added). Thereafter, if EPA determines that such regulations are warranted, it must initiate notice and comment rulemaking. See American Portland Cement Alliance, 101 F.3d at 777 (describing how RTC and regulatory determination precede rulemaking to establish Subt itle C regulations). Taken together, these provisions mandate that EPA (1) conduct a study of the adverse effects, if any, of the disposal of CCRs on human health and the environment; (2) submit the study to Congress; (3) determine whether to issue regulat ions for the disposal of CCRs; (4) base that determination on the study submitted to Congress and the information gathered in public hearings and comment; and (5) if EPA determines that Subtitle C regulations are warranted, engage in notice and comment rul emaking to promulgate the regulations. See In re: Leed Foundry, Inc., 13 E.A.D. 100, RCRA (3008) Appeal No. 07

- 02 (Feb. 20, 2008) at 9

- 10 (describing preparation and submission of report to Congress as “statutory prerequisite” to issuance of regulatory det ermination). EPA has not complied with any of these requirements to support the proposed revision to its prior Bevill determination regarding the need to regulate the disposal of CCRs and its proposed Subtitle C regulations.

EPA has prepared two previous RTCs and issued two regulatory determinations with respect to fossil fuel combustion wastes. [Footnote 3: Section 3001(b)(3(A) exempts from regulation (until EPA complies with section 3001(b)(3)(C)) “fly ash waste, bottom ash waste, slag waste and flue

ga s emission control waste generated primarily from the combustion of coal or other fossil fuels.” These wastes are subsets of CCRs.] In 1988, EPA submitted its first RTC related to fossil fuel combustion waste, limited to an analysis of CCRs from electric u tilities. See 58 Fed. Reg. 42466 (Aug. 9, 1993). This was followed by EPA’s regulatory determination that regulation of
these wastes under Subtitle C was not warranted. Id. EPA issued a second RTC for all other
fossil fuel combustion wastes in March 1999. See336

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/volume_1.pdf. EPA subsequently issued its regulatory determination regarding the wastes evaluated in this RTC. See 65 Fed. Reg. 32214 (May 22, 2000). In this regulatory determination, EPA conclude d that all fossil fuel combustion wastes should remain exempt from regulation under Subtitle C; and, that it would develop Subtitle D regulations for CCRs disposed of in landfills or surface impoundments or used to fill surface or underground mines. Id. at 32215. EPA has not issued any such regulations nor indicated that any regulations were, or would be required, for CCRs that were not landfilled or used to fill surface or underground mines.

In support of its new proposal to regulate disposal of CCRs und er Subtitle C, EPA properly recognizes that it must revise its two prior regulatory determinations. See 75 Fed. Reg. 35419. However, EPA has not undertaken the necessary steps to support such a change. Most significantly, EPA has not prepared a new study u nder section 8002(n) regarding the impacts of disposal, which includes an evaluation of the eight statutory criteria. Having failed to conduct that study, EPA has neither prepared nor submitted a RTC setting out its findings. EPA also has not based its pro posed revision to its earlier regulatory determinations, accepted comment, or held public hearings on such a RTC. In all these respects, EPA has failed to comply with the procedural mandate of section 3001(b)(3)(C).

Section 8002(n)’s requirement to condu ct and submit a RTC, and the parallel requirement in section 3001(b)(3)(C) to base its regulatory determination on a RTC, are not a one

- time obligation that, once completed, need never be complied with again. Rather, these requirements are continuing oblig ations that EPA must follow each time it desires to revise a regulatory determination. While section 8002(n) calls for a RTC to be completed by October 1980, the inclusion of that deadline cannot reasonably be interpreted to mean that Congress only mandate d that EPA conduct the study once. Rather, section 8002(n) must be read in conjunction with section 3001(b)(3)(C), which plainly states that EPA’s regulatory determination “shall be based on information developed or accumulated pursuant to such [RTC], publ ic hearings, and comment.” See also 65 Fed. Reg. 32218

- 19 (describing statutory requirements for issuing regulatory determinations under section 3001(b)(3)(C)). The use of the term “shall” in this section clearly indicates that EPA has no discretion, but m ust base each regulatory determination on a RTC. The text of section 3001(b)(3)(A) supports this conclusion by exempting from regulation the Bevill wastes

– including fossil fuel combustion wastes

– “until at least six months
after the date of submission o f the applicable study required to be conducted [under section 8002] and after promulgation of regulations in accordance with subparagraph (C).” 42 U.S.C. § 6921(b)(3)(A). In other words, any decision to regulate Bevill wastes under Subtitle C must be

prec eded by (1) the RTC, (2) the regulatory determination, (3) comments on the RTC, and (4) public hearings. EPA has not yet completed any of these required steps in support of its most recent proposal to regulate CCRs.

EPA also cannot claim that it has sati sfied these requirements by referring to its two prior RTCs regarding fossil fuel combustion wastes in 1988 and 1999. Those RTCs may have sufficed for EPA’s earlier regulatory determinations, but a new study must be conducted and a new report
submitted to Congress each and every time EPA proposes to revise or modify an earlier regulatory determination. Indeed, EPA cannot credibly claim that its current proposal is supported by its earlier RTCs such that it is relieved from the obligation to conduct the nece ssary337

study, collect the required data, and prepare a new RTC on which it must accept comment and hold public hearings. It is abundantly clear that EPA is not basing its proposed revision to the regulatory determination on the two prior RTCs (the latest of which is 11 years old). Nor could it because the prior RTCs, and in fact EPA conduct, supports an exemption for CCRs. Rather, EPA is relying on the new data and information that has been obtained since its earlier determinations and presented in the new p roposal to regulate CCRs. See 75 Fed. Reg. 35149

- 59. As such, EPA has not complied with section 3001(b)(3)(C)’s requirement to base its regulatory determination on the RTC mandated by section 8002(n) (along with information obtained through public

comment and hearings on that RTC).

EPA’s prior statements and its consistent practice in issuing Bevill regulatory determinations confirm that the Agency has always interpreted the Bevill Amendment to mandate that it first conduct and submit a RTC, accept commen ts and hold public hearings on the RTC, and then base its regulatory determinations on that RTC. Indeed, each prior Bevill regulatory determination was preceded by these very steps, and was based upon and supported by a unique and specially prepared “detai led and comprehensive” RTC. For example, the two prior regulatory determinations for fossil fuel combustion residues were preceded by and based upon such RTCs. See 58 Fed. Reg. 42466 (Aug. 9, 1993) (regulatory determination for CCRs generated at electric u tilities, preceded by 1988 Report to Congress); 65 Fed. Reg. 32214 (May 22, 2000) (regulatory determination for wastes from combustion of fossil fuels, preceded by 1999 Report to Congress); see also In re: Leed Foundry, Inc., 13 E.A.D. 100, RCRA (3008) App eal No. 07

- 02 (Feb. 20, 2008) at 7 (describing history and basis of two prior fossil fuel combustion wastes regulatory determinations). Indeed, in the consent decree entered in Gearhart v. Reilly, C.A. No. 91

- 2435 (D.D.C. June 30, 2992), EPA specifically a cknowledged that before it could issue its regulatory determination for all fossil fuel combustion wastes it first needed to conduct and submit the required Report to Congress).

The regulatory determinations for the other Bevill wastes were similarly pre ceded by, and based upon a RTC. See 60 Fed. Reg. 7366 (Feb. 7, 1995) (regulatory determination for cement kiln dust preceded by December 31, 1993 RTC); 53 Fed. Reg. 25466 (July 6, 1988) (regulatory determination for crude oil and natural gas waste preceded by December 1987 RTC); 56 Fed. Reg. 27300 (June 13, 1991) (regulatory determination for 20 mineral processing wastes preceded by July 1990 RTC); 51 Fed. Reg. 24496 (July 3, 1986) (regulatory determination for extraction and beneficiation waste preceded by December 1985 RTC). As this history demonstrates, EPA has always prepared and relied upon a RTC prior to issuing a regulatory decision as to a Bevill waste. This consistent practice demonstrates EPA’s understanding that the RTC is a mandatory prerequisite for any regulatory determination.

EPA’s proposal cannot suffice for the required RTC and associated process for issuing regulatory determinations for Bevill wastes. As EPA has stated:

In the Bevill Amendment, Congress created a special process for the Agency to determine which wastes, if any, should retain the temporary statutory exclusions from RCRA Subtitle C. This process is similar to the rulemaking process, although it entails additional steps. In 1980, Congress required EPA to study certain waste s, . . . conduct a detailed and comprehensive study and submit it to Congress, conduct public hearings and accept public comments, and finalize its338

decision in a Report to Congress.

See Complainant’s Brief In Support of Its Notice of Appeal to the Enviro nmental Appeals Board in In re Leed Foundry, Inc., RCRA (3008) Appeal No. 07

- 02 (EAB) (Jul. 2, 2007) (available at http://yosemite.epa.gov/OA/EAB_WEB_Docket.nsf/Filings%20By%20Appeal%20Number/D64 D0A837C2CC2958525730C0075BDCA?OpenDocument). In this definit ive statement, EPA correctly recognized that the process for adopting a regulatory determination differs from, and entails additional Congressionally

- mandated steps compared to the rulemaking process under RCRA. See also American Portland Cement Alliance, 101 F.3d at 777 (distinguishing between process for adopting a Bevill regulatory determination and regulations implementing and following such a determination). Congress had a good reason for creating this distinction and the additional procedures for issu ing regulatory determinations

– namely that the potential economic impacts of regulating high volume, low toxicity wastes like CCRs warrant extra study and careful consideration. In light of these concerns, EPA cannot simply ignore these requirements in
it s rush to modify its earlier determinations and promulgate Subtitle C regulations for CCRs.

In short, if EPA desires to issue regulations under Subtitle C for CCRs, it first must follow the statutorily mandated process for issuing regulatory determinatio ns. It must start by conducting the study required by section 8002(n), submitting the RTC, accepting comment and holding public hearings on the RTC. Only then may EPA propose to modify its regulatory determination, after which it may undertake the process, if any, to promulgate Subtitle C regulations. EPA’s failure to follow this process and attempt to revise its earlier regulatory determinations and proposed Subtitle C regulations is arbitrary, capricious and contrary to law.

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Be vill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- R CRA

- 2009

- 0640

- 06956

- 19 

### Organization 1 

### : Tri

- State Generation & Transmission 

### Commenter 1 : Barbara A. Walz Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: B. EPA Completed The Bevill Regulatory Process For CCRs In 2000 And The Statute Does Not
Authorize EPA To Reverse That Decision EPA has completed the Bevill process pursuant to a judicially imposed deadline and determined, in accordance with the congressi onally

- mandated decision

- making process, that CCRs do not warrant regulation under Subtitle C. The statutory decision

- making process is complete and RCRA does not authorize EPA to decide to take another bite of the apple and reverse its final339

CCR Regulator y Determinations on a time schedule and process of its own choosing. Congress established a detailed process by which EPA could determine whether and how to regulate CCRs under RCRA Subtitle C. EPA has completed that statutory process, determining
that CCR s do not warrant regulation under RCRA Subtitle C and concluding instead that CCRs warrant regulation under RCRA's Subtitle D non

- hazardous waste program. The statute does not contemplate, let alone authorize, EPA undertaking another round of the Bevill de cision making for CCRs. If it did, the statutory process and its associated deadlines for reaching and rendering a final Regulatory Determination would have no meaning and EPA could continually change its mind in an abbreviated fashion, as illustrated by t he proposed Subtitle C option. EPA itself readily acknowledges that the Bevill Amendment does not include a process for Agency reversal of the CCR final Regulatory Determinations. In response to an inquiry from Representative Markey following the Kingston ash release regarding whether and how EPA could reverse its final CCR Regulatory Determinations for CCRs, EPA’s then

- Acting Associate Administrator readily acknowledged that "RCRA does not specifically spell out the process by which we [would] revise the R egulatory Determination." [Footnote 2: See Jan. 30, 2009 letter from Joyce K. Frank, EPA Acting Associate Administrator, to Rep. Markey, Chair, House Committee on Energy and Commerce, at 3. ] As the D.C. Circuit has held, "Congress's failure to grant an ag ency a given power is not an ambiguity as to whether that power has, in fact, been granted. On the contrary, and as this Court persistently has recognized, a statutory silence on the granting of a power is a denial of that power to the agency ." American Bu s Ass'n v. Slater , 231 F.3d 1, 8 (D.C. Cir. 2000) (Sentelle, J., concurring ) (emphasis added). Here, even EPA acknowledges that the statute does not speak to whether and how EPA can revise its final CCR Regulatory Determinations. The Agency nonetheless ass umes that it possesses such power. It
does not. It is a fundamental principle of administrative law that an agency’s authority to act must come directly from Congress and absent such authority an agency may not act. See U.S. Telecom Ass'n
v. FCC , 359 F.3d 554, 566 (D.C. Cir. 2004) ("[S]tatutory 'silence' simply leaves th[e] lack of authority untouched. In other words, the failure of Congress to use 'Thou Shalt Not' language doesn't create a statutory ambiguity of the sort that triggers Chevron deference.);" Ethyl Corp. v.
EPA , 51 F.3d 1053, 1060 (D.C. Cir. 1995) (“We refuse ... to presume a delegation of power merely because Congress has not expressly withheld such power.”); Ry. Labor Executives' Ass'n
v. Nat'l Mediation Bd. , 29 F.3d 655, 671 (D.C. Cir. 1994 ) ( en banc ) (Were courts to presume a delegation of power absent an express withholding of such power, agencies would enjoy virtually limitless authority to modify the program, a result plainly out of keeping with Chevron and quite likely with the Constitu tion as well.) (emphasis in original) [Footnote 3: See
alsoAdams Fruit Co. v. Barrett , 494 U.S. 638, 649 (1990) ("A 'gap' is not created in a statutory scheme merely because a statute does not restate the truism that States may not preempt federal law."); Aid Ass'n for Lutherans v. USPS , 321 F.3d 1166, 1174

- 75 (D.C. Cir. 2003) ("[T]he Postal Service's position seems to be that the disputed regulations are permissible because the statute does not expressly foreclose the construction advanced by the agency. W e reject this position as entirely untenable under well

- established case law"). ]. The Bevill Amendment is, of course, completely silent on EPA's authority to redo or reverse a final regulatory determination that the Agency has already properly reached pu rsuant to the Amendment’s statutorily prescribed procedures and deadlines [Footnote 4: Though, as noted above, EPA missed the statutory deadlines set forth in the statute for reaching a final regulatory determination for CCRs; a citizen suit over this miss ed statutory deadline resulted in EPA being340

subject to court

- ordered deadlines for issuing both the 1993 and 2000 CCR final regulatory determinations. See infra at __. ]. If Congress had wanted to give EPA this authority, it would have done so explicitly. As the above federal decisions make clear, such silence means that EPA does not have the authority to undertake, through a process and timing of its own choosing, a second regulatory determination. The statute contemplates only a one

- time decision, direct ing EPA to "determine," not later than six months after the statutorily

- required reports to Congress on CCRs, whether Subtitle C regulation for CCRs is warranted. See RCRA § 3001(b)(3)(C). That determination, which was to be based on "information developed or accumulated pursuant to such study, public hearings, and comment," was to be published in the Federal Register and "accompanied by an explanation and justification of the reasons for it." Id. EPA completed this statutory process for CCRs over ten

years ago, concluding for a multitude of reasons that CCRs do not warrant regulation under RCRA Subtitle C. The statute simply does not empower EPA to revisit its final decision and
render a new "determination."
If EPA wishes to once more undertake the statutor ily

- presented process for reaching a final Regulatory Determination for CCRs, it must obtain this authority from Congress. If Congress were to grant EPA such authority, it would be reasonable to expect that Congress would establish new statutory deadlines and perhaps new and different statutory study factors for EPA to evaluate in undertaking an additional regulatory determination for CCRs. Absent such authority from Congress, the Agency is not empowered to alter its final 1993 and 2000 regulatory
determina tions for CCRs. Therefore, EPA cannot pursue the Subtitle C option [Footnote 5: While “[a]n agency can normally change its position and reverse a decision ... Congress, however, undoubtedly can limit an agency’s discretion to reverse itself[.]” New Jersey v. EPA

, 517 F.3d 574, 582

- 83 (D.C. Cir. 2008). Here, Congress has limited EPA’s ability to reverse its final Bevill Regulatory Determination by specifying prescribed procedures and timeframes for completing the determination and not authorizing the Agency to revisit that final determination and issuing a new determination.].

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06956

- 20 

### Organization 1 

### : Tri

- State Generation & Transmission 

### Commenter 1 : Barbara A. Walz Commenter Type: Electric Utility Company
Classification: Substantive
Comme nt Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.5 

### Comment Excerpt Text:341

C. Assuming, For Purposes Of Argument, That EPA Is Authorized To Make A Second Regulatory Determination, EPA Has Failed To Adhere To The Bevill Amendment's Prescribed
Process Even assuming that RCRA could be read as authorizing EPA to reverse its final Regulatory Determination for CCRs, the Agency would have to adhere to the statutorily

- prescribed procedures that Congress demanded EPA to follow in determining whether and how to regulate CCRs. Even EPA has recognized this; in responding to Representative Markey’s inquiry to EPA about the steps it would need to take to regulate CCRs under RCRA Subtitle C, the Agency stated that it would be “advisable [for EPA] to go through the same process we followed” in issuing the 1993 and 2000 final Regulatory Determinations [Footnote 6: See Jan. 30, 2009 letter from EPA Acting Associate Administrator Joyce Frank to Rep. Edward Markey, Chair of the House Energy a nd Commerce Subcommittee on Energy and Environment.]. Despite what it advised Congress, EPA has strayed beyond the plain language of the statute by proposing to reverse its final Regulatory Determinations for CCRs without following the statutorily

- required process it followed for issuing those determinations in the first instance. As explained above, the Bevill Amendment requires that, before making any final regulatory determination for CCRs, EPA first must study CCRs pursuant to the eight statutory study factors and then “publish a report on such study, which shall include appropriate findings.” RCRA section 8002(n). The statute then directs that such “study and findings shall be submitted to the
Committee on Environment and Public Works of the United Stat es Senate and the Committee on Energy and Commerce of the United States House of Representatives.” Id . Following submission of the report to the appropriate Congressional Committees, the statute directs EPA to conduct “public hearings and opportunity for c omment [on the report to Congress], and either determine to promulgate regulations” regulating CCRs under RCRA’s Subtitle C hazardous waste regulations “or determine that such regulations are unwarranted.” RCRA § 3001(b)(3)(C). Following this process, EPA was directed to publish its regulatory determination, “which shall be based on information developed or accumulated pursuant to such study, public hearings and comment in the Federal Register accompanied by an explanation and justification of the reasons
f or it.” Id

. Thus, prior to making any final regulatory determination for CCRs, the statute directs EPA to fully inform Congress of the Agency’s initial recommendation as set forth in the Report to Congress. This is not a mere procedural formality. As Repre sentative Bevill emphasized when introducing his amendment, it was especially critical that EPA not make the final regulatory determination in isolation, but that Congress and relevant federal agencies be involved in the
decision

- making process. 126 Cong. Rec. at 3362. The multi

- step decision

- making process set forth in the Bevill Amendment, including the submission of a Report to Congress, was specifically designed to enable Congress and other federal agencies to “evaluate the basis of the Agency’s decisio n, and to address the question of what degree of regulation, if any , is appropriate” and ultimately to ensure that the final Regulatory Determination was consistent with the nation’s “commitment to develop a coherent and consistent policy toward the use of our coal and other energy resources.” Id

. Among other omissions, EPA has not prepared a Report to Congress informing the relevant congressional committees of jurisdiction which provide Congressional oversight in EPA’s Bevill Regulatory Determination proce ss that the Agency intends to reverse course and regulate CCRs under RCRA Subtitle C. This is especially egregious given that the Reports to Congress that
EPA did provide to Congress made clear that CCRs do not warrant regulation under RCRA’s342

Subtitle C ha zardous waste program and that, therefore, EPA would not pursue this regulatory path. Now, more than ten years later, EPA is proposing to reverse that decision and issue a new Regulatory Determination for CCRs without explaining its reasoning to Congress a s required by the statute, thereby cutting Congress out of the deliberative oversight role it reserved for itself prior to issuance of any final Regulatory Determination by EPA [Footnote 7: In fact, the primary deliberative process that EPA has engaged in with other federal agencies was during the Office and Management Budget (“OMB”) interagency review process of the draft proposal delivered to OMB by EPA that would have over turned the Agency’s earlier final Regulatory Determination where virtually all of the federal agencies review the Subtitle C option

– including OMB, CEQ, Corps of Engineers, DOE, DOI (Bureau of Reclamation and Office of Surface Mining) DOT, TVA, and USDA opposed or sharply questions the Subtitle C option.]. The failure of EPA to prepar e a Report to Congress outlining fully and comprehensively the Agency’s recommendation to regulate CCRs under RCRA’s hazardous waste program is at odds with the plain language of the statute. This failure deprives Congress of its statutorily

- prescribed rig ht to be fully informed of any such recommendation so that it can evaluate and respond, as appropriate, to the Agency’s proposed course of action before EPA makes a final Regulatory Determination and develops federal regulations. For example, if EPA had re commended in the Reports to Congress that it did submit to Congress in 1988 and 1999 that the Agency’s recommendation was to regulate CCRs under RCRA Subtitle C, Congress could have informed EPA of its concerns and taken any number of steps, including legi slative action, to ensure the final Regulatory Determination was consistent with the “national commitment to develop a coherent and consistent policy toward the use of our coal and other energy resources.” Id

. Indeed, the very purpose of Congress requirin g EPA to submit its Report to Congress was to ensure that any final Regulatory Determination appropriately reflect Congress’ intentions that any regulation of CCRs not discourage the development of coal as one of the national primary sources of energy. Thi s is precisely the type of oversight role that Congress reserves for itself when requiring agencies to submit reports to Congress prior to taking regulatory action. See Natural Resources Defense Council, Inc. v. Hodel , 865 F.2d 288, 319 (D.C. Cir. 1988) (“ NRDC
v. Hodel ”) (in explaining Congress’ ability to respond to an agency report required to be submitted to Congress, the Court observed that “[i]t scarcely bears more than passing mention that the most representative branch is not powerless to vindicate i ts interests or ensure Executive fidelity to Legislative directives.”). Indeed, “congressional reporting statutes are a management tool employed by Congress for its own purposes[.]’“ College Sports Council v. Gov't Accountability Office , 421 F. Supp. 2d 59 , 67 (D.D.C. 2006), citing

, NRDC v. Hodel , 865 F.2d at 319) [Footnote 8: See also generally James R. Bowers, “Regulating the Regulators” (1990); Joel D. Aberbach, “Keeping a Watchful Eye: The Politics of Congressional Oversight 132” (1990). For example, Co ngress can control agency action by writing more detailed legislation, by requiring staff investigations or field studies, or through agency reports required by Congress.
See alsoUnited States v. S. Ind. Gas & Elec. Co ., 2002 U.S. Dist. LEXIS 20936 at *14 (S.D. Ind. Oct. 24, 2002) (noting that the purpose of Congress requesting an agency to report on a new rule was “was to provide a check on administrative agencies’ power to set policies and essentially legislate without Congressional oversight.”)]. In this case, EPA’s failure to prepare a Report to Congress regarding its proposal to regulate CCRs under RCRA’s hazardous waste program has completely eviscerated the statutory oversight role that Congress was to have in Bevill
Amendment decision

- making process for CCRs. Further, EPA’s failure to prepare and submit a Report to Congress violates the express terms of343

the statute that any final Regulatory Determination be based on public hearings and comments on the Report to Congress. This requirement is not satis fied by the truncated and amended review of the Bevill Amendment’s statutory study factors presented by EPA in this proposal. The language of the statute and its legislative history could not be clearer: the Bevill Amendment provides that, following submis sion of its Report to Congress and public hearings and comment on the report, EPA was to publish its regulatory determination “which shall be based on information developed or accumulated pursuant to such study [ i.e. , EPA’s Report to Congress], public hear ings and comment in the Federal Register accompanied by an explanation and justification of the reasons for it.” RCRA § 3001(b)(3)(C). As the Supreme Court stated in National Railroad Passenger Corp. v. National Association of Railroad Passengers (Amtrak), “[w]hen a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.” 414 U.S. 453, 458 (1974). Thus, even assuming EPA was authorized to render a new and revised Regulatory Determination, such determination must be preceded and predicated on a new Report to Congress. Even EPA has recognized that the any final Regulatory Determination must be predicated on the Report to Congress. See 75 Fed. Reg. at 35151 (explaining that EPA addressed the Bevill statutory study fa ctors for CCRs in the 1988 and 1999 Reports to Congress and “[t]he findings of these two Reports to Congress were the basis for our decisions in the August 1993 and May 2000 Regulatory Determinations to maintain the Bevill exemption for CCRs.”). Representa tive Bevill underscored the point that the public hearing and comment process was intended to directly respond to EPA’s Report to Congress and that any final Regulatory Determination was to be based on the information resulting from that process: “Finally, let me direct the House’s attention to the fact that after EPA concludes these studies, it will be required to obtain public views on them and to make known whether, as a result of this process, EPA believes any regulation of these materials is necessary. ” 125 Cong. Rec. 3362 (emphasis added). Consistent with the plain language of the statute and the accompanying legislative history, the D.C. Circuit has expressly held that the final Regulatory Determination be based on EPA’s Report to Congress. SeeEDF v. EPA , 852 F.2d at 1314) (“The statute clearly states that the agency is to base its regulatory determination on the information gathered for the § 8002(p) study”) [Footnote 9: The Section 8002(p) study refers to the EPA’s Report to Congress on
certain minin g wastes that also were subject to the Bevill Amendment. Importantly though, the D.C. Circuit’s decision is equally applicable to CCRs, as the statutory process for EPA issuing a final Regulatory Determination for mining wastes and CCRs is identical. See § RCRA 3001(b)(3)(C) (referencing both the CCR § 8002(n) study and mining waste § 8002(p) study)]. Here, of course, there is no Report to Congress recommending that CCRs be regulated under RCRA Subtitle C. In fact, the Reports to Congress that EPA did submi t reached just the opposite conclusion. EPA may believe that its abbreviated review of the Bevill statutory factors in the proposed rule is the functional equivalent to preparing and submitting a Report to Congress, but the Agency’s view is flawed for at l east two reasons. First, such a position would be at direct odds with the plain language of the statute, which expressly commands that any final Regulatory Determination be based on the Report to Congress. Congress included this requirement in the
Bevill A mendment to ensure that EPA fully and comprehensively explain its reasoning to Congress and that Congress have an oversight role in EPA’s issuance of the final Regulatory
Determination. Second, the statute does not authorize the Agency to collapse the Bevi ll Amendment’s statutory
decision

- making process into the more abbreviated exercise the Agency is undertaking here by344

combining a proposed reversal of its early final Regulatory Determinations with the proposed development of Subtitle C regulations for CCR s. As EPA candidly admits, the end result would be the issuance of a new final Regulatory Determination calling for Subtitle C regulation simultaneous with the issuance of the final Subtitle C regulations. This ignores the plain language and purpose of the Bevill Amendment. Section 3001(b)(3)(C) of RCRA provides, in pertinent part, that after issuing and obtaining public input on its Report to Congress, EPA is to “either determine to promulgate regulations”
for CCRs under RCRA Subtitle C “or determine that such regulations are unwarranted.” The Agency was then directed to publish its final determination in the Federal Register. Id . As the D.C. Circuit has explained, the text of the Bevill Amendment juxtaposes the terms ‘determination]’ and ‘regulation[],’ . . . signifying that, consistent with the principle that effect must be given to each word of a statute, the two terms were intended to have distinct meanings.”
American Portland Cement Alliance v. EPA , 101 F.3d 772, 775 (D.C. Cir. 1996). Given this
distinc tion, the sequence of actions directed by Section 3001(b)(3)(C) makes clear that the regulatory determination

– whether or not to regulate CCRs under Subtitle C

– was to be a separate and distinct step from the subsequent promulgation of any such regulatio ns. This step

wise process is consistent with Congress’ directive to EPA, as reflected throughout the Bevill Amendment’s legislative history, the Agency was to employ a more deliberative, sequential process that involved public and congressional input on w hether and how EPA should regulate CCRs in the first instance. Only after the Regulatory Determination has been issued does the statute contemplate EPA undertaking any appropriate rulemakings based on the Determination. For all the above reasons, even ass uming EPA had the authority to revisit and reverse its final Regulatory Determination for CCRs, the Agency’s proposed Subtitle C option does not comport with the statutory process that Congress demanded EPA adhere to in determining whether and how to regul ate CCRs under RCRA Subtitle C. At a minimum, EPA must conduct thorough studies demonstrating a clear need for regulation; provide to Congress a report detailing its findings on those studies; conduct public hearings and solicit comments on that Report to Congress, issue a final determination based on the report to Congress and public comment on that report regarding whether and how to regulate CCRs under RCRA. Congress did not painstakingly craft such mechanisms into the statute for its own amusement, and EPA is not at liberty to ignore such clear congressional intent

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outs ide the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06956

- 21 

### Organization 1 

### : Tri

- State Generation & Transmission 

### Commenter 1 : Barbara A. Walz Commenter Type: Electric Utility Company
Classification: Substantive
Comment Ca tegory:345

Current Task: Examine Context Assigned/Due:
Other Sections: 10.4.2 

### Comment Excerpt Text: A. The Subtitle C Option Is Inconsistent With The Bevill Amendment Because It Would Adversely Impact CCR Beneficial Use And Is Based On The Arbitrary And Capricious Position That Subtitle C Regulation Of CCRs Will Increase Beneficial Use EPA’s theory that regulating CCRs under RCRA’s Subtitle C will actually increase CCR beneficial use is one of the most fallacious aspects of the CCR proposal. This position ignores (1) actual marketplace evidence, which already is showing declines in CCR beneficial use just from the threat of Subtitle C regulation, (2) EPA’s own prior positions, (3) the nearly unanimous position of other federal agencies and state environmen tal protection agencies, (4) the views of standards setting organizations that have no economic, political or other vested interests in the outcome of this rulemaking, (5) the long

- standing view of Congress, and (6) the position of
electric utilities

– the very entities that would introduce the CCRs into the beneficial use market. EPA identifies the array of valid concerns raised by the CCR beneficial use industry, utilities, the states, standard setting organizations, and others that Subtitle C regulation will effectively cripple the CCR beneficial use market, but remarkably offers little if any response to these points. EPA expressly acknowledges that under Subtitle C option, some states, such as Florida, “would likely prohibit the beneficial use of CCRs.” Id . at 35187. Instead of providing substantive responses to these concerns, EPA persists in its position that it understands the economic drivers in the CCR beneficial use market better than those actually engaged in the business. EPA argues that driving up the costs of CCR disposal as high as possible (as would happen under the Subtitle C option)
would force more CCRs into the beneficial use market. Id . EPA’s theory, however, is based on flawed examples, and ignores the first

- hand knowledge of those actua lly involved in the CCR beneficial use market who have consistently provided EPA with information and data demonstrating that any form of Subtitle C regulation will cripple the beneficial use of CCRs. EPA’s theory also fails to consider whether the marketp lace can in fact absorb the vastly increased volume of CCRs that it speculates will be beneficially used under the Subtitle C option. Both the CCR producers and the CCR beneficial use market have explained that this is
not the case.
Rather than substantiat e its theory that CCR beneficial use will increase under Subtitle C, EPA places on those involved in CCR beneficial use the burden of providing “actual instances” of the adverse impact on beneficial use from a Subtitle C regulation that has yet to be promu lgated. Id

. at 35222

- 23. While it is impossible for anyone to prove the effects of regulations that have not yet been promulgated, ash marketers, utilities and others have presented EPA with real world data showing the adverse impacts on CCR beneficial use resulting from the mere threat of Subtitle C regulation. The only support EPA offers for its theory that CCR beneficial use will increase under Subtitle C are examples of certain materials for which EPA claims recycling has increased since becoming subjec t to hazardous waste regulation. Id . at 35186

- 87. Here too, EPA admits that some its examples involve materials that, unlike CCRs, “are not used in residential settings.” Id . at 31586. Moreover, as discussed below, certain of the examples cited by EPA
invo lve materials that are not actually regulated under RCRA Subtitle C. Another example involves used oil, which EPA specifically declined to list as a hazardous waste precisely because of its concerns that doing so would undermine the used oil recycling mark et. EPA also argues that any stigma resulting from Subtitle C regulation will be “significantly reduced by listing CCRs as a “special waste” under RCRA’s hazardous waste regulations ( id . at346

35187) attempting to deflect attention from the reality that these materials would be subject to hazardous waste regulation from the point of generation until their ultimate disposal. EPA’s “special waste” label will do nothing to reduce the potential legal liabilities of using a material in
a commercial or residential s etting that is a listed waste under Subtitle C and subject to hazardous waste regulation when disposed of. RCRA’s statutory provisions make clear that only materials that are “ hazardous waste listed or identified ” under Subtitle C are subject to the statut e’s hazardous waste controls, including, among other things, its permitting, substantive design and operating standards, and corrective action requirements. See, e.g. , RCRA §§ 3004(a) (EPA is to establish regulations for “owners and operators of facilities for the treatment, storage or disposal of hazardous waste identified or listed under this subchapter” ) & 3005(a) (EPA is to require permits for “the treatment, storage, or disposal of hazardous waste identified or listed under this subchapter ”). Put anoth er way, only “hazardous wastes”

– not “special wastes”

– can be subject to RCRA’s Subtitle C controls. There is no way around the “hazardous waste” label and the associated stigma that comes with this designation if EPA subjects CCRs to Subtitle C controls . In short, the language of RCRA renders impossible EPA’s purported goal of avoiding the stigma associated with the hazardous waste label through the application of the “special waste” label for CCRs while simultaneously subjecting CCRs to Subtitle C regul ation. In evaluating the potential impacts of Subtitle C regulation on CCR beneficial use, it is important to note that the sponsors of the Bevill Amendment cautioned EPA against regulation of CCRs under Subtitle C for precisely the same reasons being offe red today by opponents of the Subtitle C option: subjecting CCRs to the stringent Subtitle C program is certain to have adverse impacts
on the use of these materials. Considering the above in addition to the record evidence already assembled in this rulem aking proceeding, it is clear that regulating CCRs under any Subtitle C hazardous waste regime, even with the “special waste” label, will have a significant adverse impact on CCR beneficial use.
These issues are discussed further below

Response: The comme nter 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 N umber: EPA

- HQ

- RCRA

- 2009

- 0640

- 06956

- 27 

### Organization 1 

### : Tri

- State Generation & Transmission 

### Commenter 1 : Barbara A. Walz Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: C. The Subtitle C Option Is Inconsistent With The Bevill Amendment And Arbitrary And Capricious Because It Would Result In Unnecessary And Excessively Burdensome Regulation
Of CCRs A fundamental purpose of the Bevill Amendment is to e nsure that any final regulatory option
that EPA selects for CCRs utilizes cost

- effective controls, avoiding imposition on the utility347

industry of undue costs that would discourage the use of coal. As noted above, Representative
Bevill could not have been m ore direct on this point when introducing his Amendment: “Let me be quite candid in expressing my particular concern that the House not allow EPA to take steps that will discourage the use of coal.” 126 Cong. Rec. 3361. Simply put, the Bevill Amendment is intended to ensure that any final regulation of CCRs not discourage “development of coal as a primary domestic source of energy” and therefore not result in “unnecessary inflationary impact[s]” on the use of coal from overly stringent CCR regulations. Id

. As the D.C. Circuit has recognized, Congress’s emphasis on avoiding undue economic impacts on CCR controls and concerns with the costs of regulatory controls “[are] consistent with Congress’ obvious goal in enacting the Bevill Amendment

– to relieve [the B evill industries] of the onerous economic burden of stringent Subtitle C controls if at all possible .”
EDF v. EPA , 852 F.2d at 1314 (emphasis added). EPA’s Subtitle C option is flatly inconsistent with Congress’s “obvious goal in enacting the
Bevill Amendm ent” to avoid Subtitle C regulation and the associated regulatory costs of this option “if at all possible.” Indeed, EPA readily acknowledges that one of the express purposes of the Subtitle C option “is to increase the costs of CCRs” under the Agency’s mi sguided impression that this will increase CCR beneficial use. 75 Fed. Reg. at 35185 (emphasis added). In fact, as discussed below, EPA’s proposed Subtitle C option would regulate CCR disposal facilities more stringently than any other hazardous waste by t aking the unprecedented step of extending Subtitle C controls to previously closed and inactive CCR surface impoundments. Id

. at 35177. Thus, not only does the Subtitle C option reflect the most extreme and costly regulatory choice available to EPA under R CRA, it would apply the hazardous waste disposal rules to CCRs in a manner more stringent than that previously applied to any other hazardous

wastes. This draconian approach to regulating CCRs under RCRA is diametrically opposed to the very purpose and obj ective of the Bevill Amendment and cannot be pursued. While Congress directed
EPA to select the most cost

- effective regulatory option for CCRs so as not to discourage the use of coal as one of the primary sources of domestic energy, the proposed Subtitle C option appears to be specifically designed to have just the opposite result; namely, to make the disposal of CCRs as costly and as burdensome as possible in an attempt to discourage the use of coal and force
reliance on other sources. Such an approach is unsupportable given the fact that EPA itself readily acknowledges that “[t]he [CCR disposal] controls for the RCRA subtitle D option are identical to the subtitle C option.” 75 Fed. Reg. at 35213. At the same time, EPA identifies that the Subtitle C compl iance costs for utilities would be at least three times higher than for the “identical” controls under the Subtitle D option ($1,474 million under the Subtitle C option versus $585 million under the Subtitle D option). Id . EPA concedes further that its est imated Subtitle C costs do not include the costs for complying with certain significant components of the Subtitle C regulations, including for example the costs of facilities having to retrofit or upgrade CCR management units to meet the Subtitle C storag e design and operating standards. Id . at 35212 (although listed as a Subtitle C compliance element, EPA explains that these costs were not included in the Regulatory Impact Analysis (“RIA”) “because of EPA lack of information on baseline CCR storage practi ces.”). Given that the substantive disposal controls under the Subtitle D option would be effectively identical to those provided for under the Subtitle C option at far less cost and without the severe impact on the use of coal, the Subtitle C option is di rectly inconsistent with the stated purpose of the Bevill Amendment and cannot be pursued.348

In addition to being inconsistent with the Bevill Amendment, EPA’s selection of the Subtitle C option would be arbitrary and capricious because the Agency has provid ed no explanation as to why its earlier conclusions that the Subtitle C option would result in excessive and inappropriate regulatory controls for CCRs are no longer true. In its 1993 final Regulatory Determination concluding that the four large volume CCR s

– fly ash, bottom ash, boiler slag, and flue gas
desulfurization waste

– do not warrant hazardous waste regulation, EPA emphasized that the inflexible Subtitle C hazardous waste framework was inappropriate for CCRs, explaining "that it is unlikely that S ubtitle C would effectively address the problems associated with the four large

volume fossil

- fuel combustion wastes [CCRs] without imposing unnecessary costs ." Id. at 42477 (emphasis added). This was an important conclusion, because as the Agency explaine d in outlining the factors that it would evaluate in making a final regulatory determination, "the special status of the [CCR]

waste requires that the Agency consider the impacts to the industry that regulation under Subtitle C would create in making a dec ision to regulated the waste as hazardous." 58 Fed. Reg. at 42471. EPA found that the rigid nature of the Subtitle C regulatory system would result in excess costs and unnecessary regulation as applied to CCR management units. After acknowledging that
CCRs rarely exhibit a hazardous waste characteristic and thus would not be subject to hazardous waste controls unless they were listed as a hazardous waste, EPA emphasized that the listing approach would be inappropriate and excessive: Furthermore, it was note d that even if these wastes were listed as hazardous, and therefore, regulated under Subtitle C, such an approach would be inappropriate for these wastes. A Subtitle C system would require coal combustion waste units to obtain a RCRA Subtitle C permit (whi ch would unnecessarily duplicate existing State requirements) and would establish a series of waste unit design and operating requirements for these wastes, which would generally be in excess of requirements to protect human health and the environment.
Id. at 42477 (emphasis added). EPA reiterated this conclusion in its 1999 Report to Congress, explaining that the “that [RCRA] Subtitle C is inappropriate to address any problems associated with disposal of these wastes and
that the continued use of site and region specific approaches by the states is more appropriate for addressing the limited human health and environmental risks that may be associated with disposal of these wastes.” Id at 3

- 5. EPA emphasized that regulating CCRs under RCRA's
hazardous waste program "would unnecessarily duplicate existing State requirements, and would establish a series of waste unit design and operating requirements for these wastes that would most often be in excess of requirements to protect human health and the environment ." Id. (emphasis added). Having previously concluded that the Subtitle C approach would be inappropriate because, among other reasons, it would result in the over

- regulation of CCRs in contravention of the Bevill Amendment, EPA provides no expla nation whatsoever in this proposal as to what, if anything, has changed to suggest that the imposition of these very same Subtitle C controls will no longer result in inappropriate and unnecessary costs on the utility industry. As EPA itself noted earlier, “the special status of the [CCR] waste requires that the Agency consider the impacts to the industry that regulation under Subtitle C would create in making a decision to regulate the waste as hazardous.” Id . at 42471. There is no reasoned explanation for EPA’s
about

- face on this issue. The excessive costs and unduly burdensome regulation of CCRs under the proposed Subtitle C option are at least as great today as they were ten years ago when EPA rejected application of the349

Subtitle C hazardous waste rules for CCRs. As EPA has completely failed to explain why regulation of CCRs under Subtitle C is now appropriate, having expressly found earlier that such regulation would be both “inappropriate” and in “excess of requirements” for CCRs, any final
Subtitle C r egulation would arbitrary and capricious. SeeS. Co. Servs. v. FCC , 313 F.3d 574 (D.C. Cir. 2002) (noting that, in evaluating whether an agency’s changed position is arbitrary and capricious, “the issue is whether the agency furnished a reasoned explanation for its changed position.”).

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06956

- 28 

### Organization 1 

### : Tri

- State Generation & Transmission 

### Commenter 1 : Barbara A. Walz Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: D. The Subtitle C Option Is Arbitrary And Capricious Because It Is Inconsistent With The Views Of The Other Federal And State Agencies That EPA Was To Consult With In Reaching A Final Regulatory Determination EPA’s proposed Subtitle C option is oppos ed by virtually every federal and state agency that has weighed in on this rulemaking. This broad opposition to the Subtitle C option is significant because the Bevill Amendment and its legislative history make clear that the informed views of these agenci es were to be considered by EPA in the issuance of any final regulatory
determination for CCRs. Given this across

- the

- board opposition to the Subtitle C option by the groups Congress directed EPA to consult with as part of the decision

- making process for C CRs, selection of the Subtitle C option would be inconsistent with the statute and arbitrary and capricious. See

, e.g. , Nuclear Energy Institute, Inc. v. EPA, 373 F.3d 1251, 1273 (D.C. Cir. 2004) (holding that it was arbitrary and capricious for EPA to iss ue a regulation directly contrary to the opinion of the National Academies of Science with which the EPA was required by statute to consult). The statute specifically directs that EPA, in preparing its study on CCRs, “shall, as [the Administrator] deems ap propriate, review studies and other actions of other Federal and State agencies concerning such material and invite participation by other concerned parties, including industry and other Federal and State agencies, with a view toward avoiding duplication o f effort.” RCRA § 8002(n); 42 U.S.C. § 6982(n). As noted above, Representative Bevill elaborated on this collaborative process by emphasizing that “EPA’s studies should not proceed in a vacuum,” but rather that EPA was to reach out to those with expertise in the field. As Representative Bevill emphasized: Moreover, EPA should seek the assistance and cooperation of those most expert in this field

.350

With regard to fossil fuel byproducts, I include in this category not only representatives of coal

burning indus tries, but personnel from other agencies of Government that are aware of the role coal plays in our national energy policy, or of actual disposal and utilization practices. These agencies include the Department of Energy, the Department of the Interior, th e Federal Highway Administration, Department of Commerce, the Department of Agriculture,among others. In the face of our current energy crisis and the increasing costs of Government, American taxpayers cannot afford to have separate agencies of Government working without coordination. Instead, we need a cooperative, informed effort directed to the goals the President has set for us. 126 Cong. Rec

. at 3362 (emphasis added). During the inter

- agency review process by OMB’s Office of Information and Regulatory Affairs, the very agencies that Congress directed EPA to consult with regarding any final determination for CCRs uniformly opposed or sharply questioned the Subtitle C option. For example, the Department of Energy emphatically rejected EPA’s proposed regul ation of CCR under Subtitle
C: DOE continues to believe that the regulation of these [coal combustion] practices under RCRA subtitle C as hazardous waste is unwarranted, and supports the continued collection of information to help resolve EPA’s concerns r egarding CCRs. EPA ruled in 2000 that a Subtitle C designation was unwarranted, and all available evidence supports the conclusions made at that time. Continued evidence does show that unlined units have caused environmental damage; however, the promulgat ion of this Subtitle C regulation to treat all CCRs as hazardous waste does not appear to be justified, especially when, as mentioned by EPA in the preamble, the disposal practices at power plants have shown a history of improvement and are continuing to i mprove. The benefits of CCR regulation under Subtitle C are not apparent and DOE urges EPA to fully understand the implications of such a regulation before going forward with the current proposed designation. In the Regulatory Determination (RD) of 2000, w hich DOE agreed with, EPA decided to regulate CCRs as Subtitle D waste, stating that “The Agency has determined that industry practices are moving toward increased use of control measures (liners, covers, etc.) and groundwater monitoring.” This statement i s further reinforced by the 2006 joint DOE/EPA report on recent disposal practices [Footnote 19: Coal Combustion Waste Management at Landfills and Surface Impoundments, 1994

- 2004. Available publicly at: http://www.osti.gov/bridge.]. Despite the indication of better disposal practices, the proposed rule advocates Subtitle C regulations. This is in direct opposition to the 2000 RD that Subtitle C regulations were unwarranted, when EPA determined “that it is unlikely that Subtitle C would effectively address the problems associated with the four large

- volume fossil

- fuel combustion wastes without imposing unnecessary controls. Interagency Working Comments on Draft Rule under EO 12866 at p. 21

- 22. The Department of the Interior (“DOI”) sharply questioned the Sub title C option and echoed the concerns referenced above by the CCR beneficial use industry that “[r]egulating CCR disposal as RCRA Subtitle C, in full or by implementing a hybrid regulation, we believe that the availability to purchase fly ash for use in c oncrete will be eliminated. Id. at 26. DOI stated that it concurs “with industry leaders who feel strongly that if fly ash is designated as a hazardous waste, fully or in a hybrid classification, it will no longer be used in concrete.” Id

. The Department o f Transportation (“DOT”) similarly cautioned EPA against regulating CCRs under Subtitle C because of the adverse impact on CCR beneficial use: DOT is concerned about the negative impacts that may result from designating fly ash as a351

hazardous material ... . The Rule would designate all CCRs as hazardous and then exempts beneficial uses. However, DOT is concerned that this approach is confusing, and may still have unintended consequences associated with Subtitle C. For example, many states have policies that
f orbid the use of any hazardous materials. Thus, if fly has is designated as a hazardous material, it would fall under these general State prohibitions and would legally prevent the use of fly ash in public works structures and highways. Furthermore, an exe mption in a Federal regulation probably would not negate State laws. If a material is in any manner considered hazardous, States will not risk future liability.
Id. at pg. 30. The Department of Agriculture also cautioned EPA that: “Listing of all CCRs as
h azardous waste significantly inhibits recognized, current, and continuing beneficial uses.” Id. at 46. Comments submitted by the White House Council for Environmental Quality (“CEQ”) directly challenged the Subtitle C option, explaining that “it will be ve ry expensive to regulate CCR with likely little environmental benefit based on what has been presented thus far . . . less expensive approaches could include enforcement of annual inspections which would provide much greater
environmental benefits relative to those proposed.” Id . at 17. CEQ also noted that approximately 2.5 tons of materials are disposed of annually as hazardous waste and that bringing CCRs into the hazardous waste system would add “the order of 130 million tons per year to this inventory,” thus causing disposal capacity shortfalls and likely requiring some facilities “to shut down temporarily, or permanently, due to the lack of viable hazardous waste disposal options.” Id

. Further, CEQ identified the serious compliance challenges that would be imposed on utilities under the Subtitle C option, including the fact that de minimis releases of CCRs “would constitute improper hazardous waste disposal and subject facilities to non

- compliance.” Id

. Given these problems, CEQ recommended that the Agen cy “re

- examine if Subtitle C regulation is warranted, in accordance with Section 3004(x) EPA, and focus in on the special characteristics of such waste, the practical difficulties associated with implementation of such requirements, and
site

- specific chara cteristics.” Id. at 18. In addition to the above federal agencies, Congress directed EPA to consult with state agencies in assessing whether and how to regulate CCRs under RCRA. As noted above, state trade associations and individual state environmental pr otection agencies have uniformly advised EPA that regulating CCRs under Subtitle C would have a devastating impact on CCR beneficial use. In addition, however, national associations representing state governments have more broadly advised EPA of their oppo sition to the Subtitle C option because it would be duplicative of and disruptive to existing state controls for CCRs. It is precisely this type of duplication that the
Bevill Amendment directs EPA to avoid. See RCRA § 8002(n). For example, the National Go vernors Association advised EPA that the “Governors support their

state

- run programs and have concerns regarding potential federal regulation of CCW. ... In summary, Governors are very concerned about potential federal regulation of CCW as either a
hazardous or nonhazardous substance under RCRA. While we are unaware of issues EPA may have with our state programs, we hope to work with you and your staff to address any questions.” Letter from National Governors Association to EPA at p. 1 (Nov. 16, 2009). The
We stern Governors’ Association also disagreed with EPA’s proposed regulation of CCRs under
Subtitle C: The federal regulation of CCB as hazardous waste would undercut existing and effective state regulatory authority resulting in additional and unwarranted regulatory programs and would add costly burdens to states’ budgets that are already significantly strained. States should review their352

existing regulations of CCB and make any changes necessary in light of the 2008 TVA impoundment pond failure.
Western G overnors agree with US EPA’s 1993 and 2000 regulatory determinations that CCB do not warrant regulation as hazardous wastes and that the western states have an effective regulatory infrastructure in place to continue as the principal regulatory authorities to ensure protection of human health and the environment through the safe and secure management of CCB under state solid waste, groundwater protection and coal mine regulatory programs. Western Governors Association, Policy Resolution 10

- 1.
The Environmen tal Council of the States (“ECOS”) also expressly opposed EPA’s proposed regulation of CCRs under Subtitle C, stating that ECOS: Agrees with U.S. EPA’s repeated assessments in 1988, 1993, 1999, 2000, and 2005 that CCW disposal does not warrant regulation a s hazardous wastes under RCRA Subtitle C; Agrees with U.S. EPA’s finding in the 2005 study previously cited that “the regulatory infrastructure is generally in place at the state level to ensure adequate management of these wastes” and believes that states should continue to be the principal regulatory authority for regulating CCW as they are best suited to develop and implement CCW regulatory programs tailored to specific climate and geological conditions designed to protect human health and the
environmen t; Therefore [ECOS] calls upon U.S. EPA to conclude that additional federal CCW regulations would be duplicative of most state programs, are unnecessary, and should not be adopted, but if adopted must be developed under RCRA Subtitle D rather than RCRA Sub title C, and in addition, urges U.S. EPA to make a timely decision, and calls upon U.S. EPA to begin a collaborative dialogue with the states to develop and promote a national framework for beneficial use of CCW including use principles and guidelines, and to accelerate the development of markets for this material. ECOS, Revised Resolution Number 08

- 14 (Mar. 23, 2010). The Association of State and Territorial Solid Waste Management Officials (“ASTSWMO”) also has expressly rejected EPA’s proposed regulation of CCRs under Subtitle C: To artificially classify [coal combustion products (CCB)] as hazardous will needlessly limit the management options for both the CCBs and other wastes legitimately classified as hazardous which will be competing with CCBs for lim ited hazardous waste disposal capacity, while not producing any great degree of environmental protection. Transportation, manifesting and licensing requirements for CCBs as a listed hazardous waste are excessively burdensome without
sufficient evidence of a benefit. It would be more appropriate to regulate and manage CCBs using design and operation standards specified for Subtitle D programs except in cases where a particular source material is deemed hazardous upon testing for characteristics.
The most com pelling reason not to impose Subtitle C regulations is that the beneficial use of CCB has been very successful. The “hazardous” label of Subtitle C would be detrimental to State CCB beneficial use programs[.] Regulation under RCRA Subtitle C has the potent ial to put an end to many beneficial uses for CCB. Letter from ASTSWMO to EPA, at pp. 4

- 5 (Apr. 1, 2009). In short, the statute and its legislative history make clear that that EPA was to “seek the assistance and cooperation of those most expert in this fi eld,” including the above

- referenced federal and state agencies, in making a regulatory determination. EPA’s selection of the Subtitle C option would be directly contrary to the unanimous opinion of these informed parties and to353

Congress’ directive that EP A produce a “collaborative, informed” regulatory determination for
CCRs

Response: The Agency acknowledges and appreciates the comment. 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 referred to V of 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

- 06956

- 29 

### Organization 1 

### : Tri

- State Generation & Transmission 

### Commenter 1 : Barbara A. Walz Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
VII. EPA’s PROPOSED LISTING OF CCRs AS A SPECIAL WASTE IS LEGALLY
DEFECTIVE EPA proposes to regulate CCRs under the Subtitle C option by listing CCRs as a “special” waste under RCRA’s hazardous waste regulations. 75 Fed. Reg. at 35166. The listing would apply to all CCRs destined for disposal. Id . In proposing to regulate CCRs, th e Agency evaluated CCRs against the listing criteria in 40 C.F.R. § 261.11(a)(3). Id . at 35166. Under this provision, EPA may list a waste as hazardous if, after evaluating ten individual criteria, the Agency concludes that “the waste is capable of posing a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed.” Id . at 35167 [Footnote 20: While the regulation lists eleven criteria, there are really only te n, as the eleventh factor is a “catch

- all, allowing the Administrator to consider any other factor she finds relevant.” Dithiocarbamate Task Force v. EPA , 98 F.3d 1394, 1398 (D.C. Cir. 1996).]. As discussed above, despite referring to CCRs captured by the listing as “special waste,” EPA readily acknowledges that CCRs included in the listing description would be regulated under the full scope of RCRA’s Subtitle C hazardous waste regulations, including “40 C.F.R. parts 260 through 268 and 270

- 279 and 124, and subject to the notification requirements of section 3010 of RCRA.” Id . at 35166. CCRs included in the listing would be categorized as “Coal combustion residuals generated by the electric power sector (Electric Utilities and Independent Power Producers)” a nd assigned
EPA waste code S001. Id . at 35254 (proposed 40 C.F.R. § 261.50(a)) [Footnote 21: For purposes of this listing, the electric power sector would be defined “as electricity

- only and combined

- heat

and

- power (CHP) plants whose primary business is to sell electricity, or electricity and heat, to the public; i.e., NAICS code 221112 plants.” Id . (proposed 40 C.F.R. § 261.50(b)).]. For purposes of the proposed S001 listing, the term “coal combustion residuals” is defined to include “fly ash, bottom ash, boiler slag, and flue gas desulfurization materials generated by the electric utility industry.” Id. (proposed 40 C.F.R. § 261.50(b)). The listing would cover CCRs disposed354

of in any type of disposal unit, regardless of the location of the unit and/or whet her it has a liner and/or groundwater monitoring system. EPA’s proposed listing of CCRs is fatally defective for a number of reasons, including (1) the scope of the proposed listing is overly broad and, as a result, the Agency has not properly
evaluated t he individual CCRs against the listing criteria; (2) EPA has employed an unrealistic scenario in evaluating the “plausible mismanagement” scenario to which the waste could be subjected; (3) EPA has not identified, let alone evaluated, other federal and sta te regulatory programs applicable to CCRs as required by the listing criteria; (4) the risk assessment that serves as the cornerstone for certain elements of the proposed listing contains fundamental errors; and (5) EPA’s draft screening analysis involving the potential risks for CCR fugitive dust emissions is based on overly conservative inputs and does not reflect real world conditions. As a result of these flaws, EPA may not list any of the four CCRs as a listed waste under Subtitle C

Response: The Agency acknowledges and appreciates the comment, however in that the Agency is finalizing a subtitle D rule for the management of CCR, the commenter’s arguments regarding the potential promulgation of a subtitle C rule for the regulation of CCR is outs ide the scope of this rulemaking.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06988

- 10 

### 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: Additionally we believe that CCR’s clearly meet the definition of high

- volume, low

- toxicity waste to classify it under the additional consideration of the Bevill congressional amendment to RCRA. EPA has willfully failed to give appropriate legal weight to the amendment which was passed as an act of Congress and signed into law by the President. EPA appears to be giving greater weight to their own regulations over the federal law which vio lates numerous legal principles and precedents.

Response: The Agency acknowledges and appreciates the comment. 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 and for a d iscussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06988

- 18 

### Organization 1 

### : Missouri Joint Municipal Electric Utility Commission 

### Commenter 1 : Floyd Gilzow Commenter Type: State Government355

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



### Comment Excerpt Text: MJMEUC contends that EPA has willfully failed to accord CCR regulation the appropriate treatment under the Bevill Amendment and as such the proposed regulations are fatally flawed.

Respon se: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06993

- 3 

### Organization 1 

### : Oglethorpe Power Corporation 

### Commenter 1 : Douglas J. Fulle Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Cu rrent Task: Examine Context Assigned/Due:



### Comment Excerpt Text: As explained in NRECA's comments, in no event is regulation pursuant to Subtitle C of RCRA necessary, appropriate or even legally permissible under federal law. EPA lacks authority under
the Bevill Amendment to promulgate the Subtitle C option. [Footnote 3: See 42 U.S.C. § 692 1(b)(3)(C) (calling for EPA to make a one

- time determination for CCBs).] The Bevill Amendment suspends EPA's authority to regulate CCBs, pending EPA completion of a ser ies of formal steps, which included creation and submission of a study to Congress to determine whether such regulation was warranted and solicitation and consideration of public comments responding to the study. EPA completed its statutory obligations und er the Bevill Amendment, by completing two reports to Congress (in March of 1988 and March of 1999) and by issuing two regulatory determinations (in August of 1993 and May of 2000), concluding that regulation under Subtitle C was unwarranted, and that deve lopment of national nonhazardous solid waste regulations under RCRA Subtitle D would be appropriate for CCBs disposed in landfills or surface impoundments. The Bevill Amendment does not give EPA the discretion to revisit "its
1993 and 2000 determinations. Even assuming, for purposes of argument, that EPA has such authority, EPA fails to adhere to the procedures spelled out in the statute for CCBs in this rulemaking. [Footnote 4: See 42 U.S.C. § 6982(n).] Additionally, the Subtitle C option is arbitrary, cap ricious, and contrary to applicable law because it would harm the beneficial use of CCBs, present insurmountable compliance obstacles, create serious disposal capacity shortfalls, and impose tremendous costs on electric utilities, as noted previously. Thes e burdens are not justifiable, given that EPA has set forth an alternative approach that imposes essentially the same356

controls on CCB disposal as the Subtitle C option without many of the attendant costs, compliance barriers and impairments to beneficial u se.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07395

- 6 

### Organization 1 

### : Texas Coal Combustion Products Coalition (TCCPC) 

### Commenter 1 : Michael J. Nasi Commenter Type: Trade Association
Classificati on: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The Subtitle C option imposes unreasonable regulatory burdens on utilities and is in contrast to the Bevill Amendment's directive. Moreover, the imposition of a regulatory program that makes compliance with the program impracticable violates a basic tenet of administrative law that renders such actions as arbitrary and capricious [Footnote 26: See Alliancefor Cannabis Therapeutics v. DEA, 930 F.2d 936, 940 (D.C. Cir. 1991), citing D.C. Transit Sys., Inc. v. Wash. Metro. Area Transit Comm., 466 F.2d 394, 402 (D.C. Cir. 1972).].

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07791

- 18 

### 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: 10.3.1 

### Comment Excerpt Text: GAEPD foresees problems with the proposed exemptions for CCRs at 40CFR261.4(b)(4)(i) and 40CFR261.50(d)., particularly with regards to either direct use as fill or use as an ingredient in a product that will be placed on the land (UCD). Exist ing rules, at 40CFR261.2(e)(2)(i) and 40CFR266.20, generally prohibit UCD except under narrow circumstances involving " ... a chemical reaction in the course of producing the product so as to become inseparable by physical means and ... meet the applicable treatment standards in subpart D of part 268 ... " EPA's proposal to abandon this long

- standing regulatory rubric through the sophistry of classifying a material differently based upon "use", rather than management, reinforces our position (expressed abov e) that the Subtitle C listing proposal is in

- feasible. GAEPD did not expand our evaluation to the 2008 DOSW Final Rule, as EPA has indicated that it will be re

- proposed next

summer.357

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

- 07802

- 1 

### Organization 1 

### : Alpha Natural Resources 

### Commenter 1 : Michael R. Peelish Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.1 3.1.2 7.3.1 10.4.2 

### Comment Excerpt Text: Alpha is extrem ely concerned with EPA's proposal to regulate Coal Combustion Residue ("CCR") as a hazardous waste under Subtitle C of the Resource Conservation and Recovery Act ("RCRA") (42 U.S.C. § 6901, etseq.) For the reasons stated below, EPA's proposed action is
ill egal, arbitrary and capricious, and is yet another attack on the American coal industry. Coal continues to be the primary source of energy for the great majority of US electric power generation and CCR has been proven to be successfully and safely used in many beneficial applications. EPA's proposed action here would significantly and unnecessarily increase the cost of domestic energy supplies. It would also chill, if not preclude, these beneficial uses, and
overwhelm state and local resources efforts to ha ndle truly hazardous materials. The result of EPA's proposed action would be a dramatic step backward in environmental protection and ongoing efforts to achieve the congressional intent of RCRA, and will result in nothing more than making the United States economy more dependent on foreign energy sources, more vulnerable to energy price increases and volatility, and more at risk from exposure to real
hazardous wastes.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on o ur decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07802

- 5 

### Organization 1 

### : Alpha Natural Resources 

### Commenter 1 : Michael R. Peelish Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.1 7.3.1 10.4.2 

### Comment Excerpt Text: In short, EPA's proposed action is illegal in that it fails to follow the Bevill Amendment under which it no longer has authority to regulate CCR as a ha zardous waste. It is plainly arbitrary and capricious in that it ignores its prior determinations and fails to use appropriate scientific information in support of its decision. Instead of meeting EPA's primary goal of protecting the358

environment, EPA's pro posal will make us all less safe, forcing greater reliance on foreign energy sources while overwhelming state resources for handling truly hazardous materials and precluding protective beneficial uses.

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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08227

- 71 

### Organization 1 

### : Gypsum Association 

### Commenter 1 : Michael Gardner Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.1 3.1.2 10.4.2 10.2.4 10.2.3.2 

### Comment Excerpt Text:

V. THE GYPSUM ASSOCIATION OPPOSES OPTION 1 AND PREFERS OPTION 2

A. Overview

The Proposed CCR Rule presents two regulatory options for public comment. Under Option 1, EPA proposes to overturn part of the longstanding Bevill exclusion to RCRA [Footnote 12: The Gypsum Association objects to EPA's jurisdictional basis for the Proposed CCR Rule or the

promu lgation of a Final Rule. The Solid Waste Disposal Act specifically directed EPA to undertake a detailed study and report on CCRs, and "after public hearings and opportunity for comment, either determine to promulgate regulations for each waste listed in su bparagraph (n) of this paragraph or determine that such regulations are unwarranted." 42 U.S.c. §§ 6982(n),6921(b)(3)(c). EPA undertook its study and determined that regulations were unwarranted in 1993. 75 Fed. Reg. at 35136

- 37. EPA confirmed this determi nation in 2000. Id. at 35137. The statute does not provide for a subsequent reconsideration or revisitation of that determination. EPA lacks authority to change course and now, more than ten years later, determine that regulations are warranted absent new legislation allowing it to do so.] and list all CCRs destined for disposal as a class of "special waste" subject to the full extent of hazardous waste regulations under Subtitle C of the Act. Option 2 would maintain CCRs' current regulatory

status as non

- h azardous under Subtitle D of RCRA, but would impose new performance standards for CCR land disposal activities. As discussed in this Section, the Gypsum Association strongly opposes Option 1, which would regulate FGD gypsum as a special waste in violation of RCRA's hazardous waste listing regulations. While EPA insists that Option 1 would not regulate beneficially used CCPs, such as FGD gypsum, significant uncertainty remains regarding the scope and applicability of the regulatory proposal, which is exacerb ated by EPA's inconsistent terminology and statements about beneficial use throughout the preamble to the Proposed CCR Rule. See 75 Fed. Reg. at 35129. Moreover, even with the beneficial use exemption, the designation of CCRs as a special waste would serio usly stigmatize FGD gypsum.Conversely, while the Gypsum Association believes that no regulatory changes are warranted, it prefers Option 2, provided that it maintains the current Subtitle D approach. Nevertheless, there are also significant open issues and uncertainty with Option 2. As a result of these uncertainties and to359

avoid the unintended potential consequences of negatively impacting the use of FGD gypsum, the Gypsum Association requests a specific exemption to confirm and clarify its exclusion from either regulatory proposal.

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

- 08227

- 76 

### Organization 1 

### : Gypsum Association 

### Commenter 1 : Michael Gardner Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 11.1 

### Comment Excerpt Text: B. Option 1 would Improperly List FGD Gypsum as a Special Waste in Violation of RCRA

Under Option 1, EPA proposes to regulate all CCRs destined for disposal as a listed "special
waste." EPA defines "CCRs" to include four different materials: "fly ash, bottom ash, boiler slag (all composed predominantly of silica and aluminosilicates), and flue gas desulfurization materials (predominantly Ca

- SOx compounds) that were generated from processes intended to generate power." Id. at 35137 ( emphasis added); see also id. at 35174 ("EPA is proposing to list CCRs generated by electric utilities and independent power producers destined for disposal as a special waste subject to the requirements of RCRA Subtitle C").EPA is authorized under existin g RCRA regulations to list a class of materials as hazardous waste. 40 C.F.R. § 261.11(b). However, as the Agency has acknowledged in the preamble to its 1980 regulations for identifying hazardous waste, it is only appropriate to do so if the wastes "demon strate a reasonable likelihood of hazard as a class." 45 Fed. Reg. 33084, 33144 (May 19, 1980). In addition, EPA bears the burden to demonstrate that sufficient uniformity exists or is likely to
exist. Id. at 33144. EPA has failed to meet this burden in th e Proposed CCR Rule, as no data or other information have been presented to support aggregating all CCR materials for listing as a single special waste class. Moreover, as discussed at length above, the available data demonstrate that FGD gypsum is not haz ardous and is clearly distinguishable from the other materials defined as CCRs. EPA thus has no basis to combine the CCRs and, most importantly for the Gypsum Association, there are no grounds to include FGD gypsum in the proposed waste class. Option 1

con sequently cannot be adopted. See Dithiocarbamate Task Force v. Envtl. Prot. Agency, 98 F.3d 1394, 1405 (D.C. App. 1996) (holding that EPA's proposed class waste listing must be vacated because the Agency failed to provide a reason for regulating a group of chemicals that are distinguishable on a key listing criterion).

EPA also has failed to adequately explain the basis for listing FGD gypsum as a special waste under Option 1. In the preamble to the Proposed CCR Rule, EPA maintains that CCRs should be
list ed as a special waste based on the listing criteria identified in Section 261.11(a)(3) of the RCRA regulations. 75 Fed. Reg. at 35166; see also 40 C.F.R. § 261.1 1(a)(3) (identifying eleven360

factors that EPA must consider in determining whether a waste shou ld be listed as hazardous). However, none of the data, damage cases, or risk assessments cited by EPA satisfy these RCRA listing criteria with respect to FGD gypsum. Instead, EPA focuses on the potential risks associated with other CCR materials and more g enerally with waste management practices. EPA thus has failed to conduct the required technical analysis and risk assessment of FGD gypsum material. In the absence of a rational connection between EPA's supporting information and its decision to list FGD g ypsum as a special waste, the Agency is left with baseless, conclusory statements about potential risks which cannot support a hazardous waste listing determination. See Am. Mining Cong. v. Envtl. Prot. Agency, 907 F.2d 1179, 1189 (D.C. App. 1990) (remandi ng EPA's hazardous waste listings because of the Agency's reliance on conclusory statements and failure to articulate a rational connection between its data and listing determination). Furthermore, in relying on such unsubstantiated assertions, EPA has fai led to meet the affirmative burden imposed by the RCRA regulations. Specifically, Section 261.11 provides that the Agency may make a listing determination "only upon determining that the solid waste meets [the listing criteria]." 40 C.F.R. § 261.11(a) (emp hasis added). Again, no such determination has been made for FGD gypsum under Option 1.

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 re ferred to Units IV and VI for a complete discussion of the beneficial use aspects of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08228

- 5 

### Organization 1 

### : Detroit Regional Chamber 

### Commenter 1 : Brian A. Kandler Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 11.2.5 

### Comment Excerpt Text: Beyond closing regulatory gaps that exist in states lacking a robust solid waste program, recommendations that go beyo nd the “D Prime” option will result in negative economic consequences from increased energy prices passed on to businesses and residents, alike, without commensurate improvement to the quality of local environmental conditions. We believe that
environmenta l regulations should look to maximize the environmental and public health benefit from dollars spent on compliance and on Agency staff. In cases where state programs currently demonstrate an ability to protect the public, it would be more efficient to cons ider targeting the rule at encouraging other states to catch up. A legislative fix would also likely allow the agency to focus more closely on desired integrity standards for CCR storage without the complex “domino effect” that comes from a reclassificatio n.

Response: The Agency acknowledges and appreciates the comment. 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.361



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08244

- 4 

### Organization 1 

### : Edison Mission Energy, LLC 

### Commenter 1 : Basil G. Constantelos Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 11.1 

### Comment Excerpt Text:

C. E PA’s CCR Definition Covers A Broad Range Of Combustion And Emissions Control By

Products With Widely Different Physical And Chemical Compositions That Cannot Be Grouped Into One Overarching Class Of Materials To Determine The Hazards Associated With Their Disposal The CCR Rule is unprecedented because it attempts to regulate under RCRA four very different combustion by

- products produced by coal

- fired EGUs, as a single category of waste, without making any attempt to evaluate whether such an approach is appr opriate based on the available data. This approach is erroneous as a matter of law, see Sections III.B and III.E, and is also scientifically inappropriate because of differences in the composition of the four different combustion byproducts that make up th e CCR waste category proposed by EPA. To achieve its regulatory objective, the Proposed Rule has to create two new defined terms that had previously not been included in either the U.S. Code or the Code of Federal Regulations:

- CCPs means “fly ash, bottom ash, boiler slag, or... [FGD] materials, that are beneficially used.”[Footnote 46: 75 Fed. Reg. at 35,130.]

- CCRs means “fly ash, bottom ash, boiler slag, and ... [FGD] materials destined for disposal. CCRs are also known as coal combustion wastes (“CCWs”) and fossil fuel combustion (“FFC”) wastes, when destined for disposal.”[Footnote 47: Id. at 35,130.] EME submits that subjecting CCRs to regulation based on these definitions is inappropriate. The definitions combine four different materials, which even EPA h as acknowledged are produced at different stages of the coal combustion process and which have different physical properties, structures and in some instances materially different chemical compositions. EPA should have evaluated these materials independent ly and made separate RCRA Subtitle C determinations for each. As explained in Section III.B, EME believes that EPA’s guidance and prior precedent obligate it to do so

– and its failure to do so here is arbitrary and capricious. The four primary by

- products p roduced by the combustion of coal in most boilers are fly ash, bottom ash or boiler slag, and FGD materials for those plants with scrubbers. At the outset, there are two factors that should be considered when evaluating whether these materials should be
lu mped together for purposes of regulation under RCRA: (1) the composition of the coal being burned; and (2) the structure and characteristics of the different types of CCR. First, the composition of these materials (particularly the ash

- derived materials) a re not uniform
from EGU

- to

- EGU; they vary based on the type of coal being burned and the type of combustion device. As with most fossil fuel resources, the composition of coal varies (particularly its metal content), especially if one compares sub

- bitumino us and bituminous coals. For example, there is wide variation in the arsenic levels between the two types of coal

– a typical sub

- bituminous coal has arsenic concentrations of 5.85 mg/kg, while bituminous averages roughly three times more at 16.2 mg/kg.[Fo otnote 48: EPRI, Tables of Summary Statistics for TRI Trace Element Concentrations in Fuels from the Pisces Database, August 14, 1998. EPA cannot dismiss the362

distinction between bituminous and subbituminous coal ash by claiming that it has no control or
kn owledge about what individual plants burn. The Agency recently collected extensive data under § 308 of the Clean Air Act from all of the EGUs that would be effected by Utility MACT

– i.e. every power plant in the country except those under 25 MW. These dat a included, among many other things, certified data regarding the type of fuel burned at a particular plant. Based on
these data 30

- 40% of coal

- fired EGUs burns exclusively subbituminous coal. As discussed further below, there is no basis to conclude that CCRs or fly ash from those facilities constitute hazardous waste given their dramatically lower metal content.] The charts in Figure 1 below compare the arsenic, cadmium, cobalt and selenium concentrations (i.e., the CCR constituents driving EPA’s risk con clusions) in bituminous and subbituminous coals and the fly ash generated by burning those coals. These comparisons illustrate the significant differences in metal content between the two coals and the combustion by

- products they produce. [See original com ment for Figure 1. Comparisons of Arsenic, Cadmium, Cobalt and Selenium Concentrations in Subbituminous and Bituminous Coal, and the Resultant Fly Ash] As these figures amply demonstrate, there are dramatic differences in the metals content of
bituminous v ersus subbituminous coal

– rendering improper EPA’s grouping of the CCRs generated from these two types of coal, given that EPA’s listing decision is predicated on the
metals content of the CCRs. The metal concentration of coal also varies based on the
loc ation/characteristics of the location where it was mined. Second, as explained below, the physical/chemical differences in the structure of the materials below impact their potential to leach whatever metals they might contain. These discrepancies
alone ar e sufficient to demonstrate the arbitrariness of EPA’s attempt to regulate all CCRs under one broad waste category. The individual CCR materials covered by the Proposed Rule and their distinguishing features are explained below:

- Fly Ash is comprised of th e fine particles that rise with the flue gases and escape an EGU’s boiler through the exhaust ducts. Coal

- fired EGUs collect fly ash from their exhaust gases using electrostatic precipitators or bag houses, with some minimal amount collecting in scrubber

s ystems at those plants where such systems are installed. Physically, fly ash is a very fine powdery material, composed mostly of silica; however, the characteristics vary depending on the inorganic constituents in the coal combusted. Fly ash produced from the combustion of bituminous coal typically contains silicon and aluminum with minor amounts of iron, calcium, magnesium, sodium, potassium and sulfur. Fly ash produced from sub

- bituminous coal combustion typically contains silicon, aluminum, and calcium w ith minor amounts of iron, magnesium, sodium, potassium, and sulfur. Nearly all particles are spherical in shape. Fly ash is generally light tan in color and consists mostly of silt

- sized and clay

- sized glassy spheres, giving it a consistency similar to ta lcum powder. One of the primary beneficial reuses for fly ash is in the production of cement. The spherical shape and particle size distribution of fly ash also make it good mineral filler in hot mix asphalt applications. It also improves the fluidity of f lowable fill and grout when used for those applications [Footnote 49: EPA, Wastes

- Resource Conservation

Reduce, Reuse, Recycle

- Industrial Materials Recycling: Fly Ash, at http://www.epa.gov/osw/conserve/rrr/imr/ccps/flyash.htm. The Proposed Rule defines fly ash as “very fine globular particles of silica glass which [are] a product of burning finely ground coal in a boiler to produce electricity, and [are] removed from the plant exhaust gases by air emission control devices.” 75 Fed. Reg. at 35,130.]. Fly ash can be categorized in to two groups depending on the type of coal being burned.

- Class C Fly Ash[Footnote 50 :Fly ash classifications are defined by the American Society of363

Testing Materials (“ASTM”) and are often specified for fly ash applications su ch as DOT projects.] is produced by burning subbituminous coal. While it is primarily a siliceous material, it contains more than 20% lime (CaO) and as a result has natural cementitious properties that cause it to harden and gain strength over time when mi xed with water at ordinary temperatures without any sort of activator being added to the material (i.e., it forms cement

- like material all by itself in the presence of water). This property makes Class C fly ash particularly useful in cement and

concrete a pplications; it is also the reason why EME handles and stores the fly ash dry from its
Illinois facilities.

- Class F Fly Ash [Footnote 51: Id.] is produced by burning bituminous coal. It is also primarily a siliceous material, but it contains less than 20% lime and as a result does not have the same natural cementitious properties as Class C fly ash. Class F fly ash will harden if it is mixed with an activator such as water and calcium (from another source such as cement, lime or kiln dust).
While it lacks cementitious properties, Class F fly ash is useful as structural fill and in asphalt production because of its uniform size. For purposes of the Proposed Rule, there are two important differences between Class C and Class F fly ash that materially impact t heir potential to leach metals to groundwater. First, the inherent cementitious property of Class C fly ash means that over time as it is exposed to water, it hardens and becomes much less porous (i.e., amenable to infiltration), and by extension less

susc eptible to leaching relative to Class F fly ash, which has a lower lime content. Second, Class C and Class F ash have dramatically different arsenic (and other metals) content (consistent with differences in the underlying coal that produces the ash)

– Cla ss C fly ash (produced by burning
sub

- bituminous coal) averages 14.5 mg/kg of arsenic, while Class F fly ash (produced by burning bituminous coal) averages more than ten times that amount at 168 mg/kg [Footnote 52: EPRI, Tables of Summary Statistics for TR I Trace Element Concentrations in Fuels from the Pisces Database, August 14, 1998.]. The charts in Figure 2 below from EPA’s 2009 CCR study illustrate the difference in arsenic concentrations between Class C and Class F fly ash as a function of pH. (Note: The green line in the Class C fly ash chart can be disregarded as it reflects the arsenic concentration of lignite, however, it does illustrate further the differences in the metals content of different coal types). The data for other metals is comparable. Since the concentrations below are presented on a log scale, the charts in Figure 2 clearly show that the concentration of arsenic in Class F fly ash is 1 to 3 orders of magnitude higher than Class C fly ash (although even the Class F fly ash samples from the study were below EPA’s levels of
concern for arsenic

– 10 mg/L). [See original comment for Figure 2. Arsenic concentrations in Class F & Class C fly ash as a function of pH[Footnote 53: EPA, Characterization of Coal Combustion Residues from Electric
U tilities

– Leaching and Characterization Data 94, 96 (December 2009) (“Dec. 2009 CCR Characterization”).] Class F Fly Ash] Despite the clear and widely known differences between the physical and chemical characteristics of Class C and Class F fly ash that bear directly on their potential to leach metals, EPA nevertheless lumped them together in a single waste class. On its face this decision is arbitrary and, as explained above, contrary to law.

- Bottom Ash is made up of heavier coal ash particles which, be cause of the temperature in the boiler, agglomerate into larger particles that are too large to be carried in the flue gases, and therefore get impinged on the furnace walls and fall to the bottom of the boiler. Bottom ash is typically grey to black in col or, and resembles coarse sand. It is very coarse, with grain sizes spanning from fine sand to fine gravel. As result, bottom ash is well suited to be used as a364

replacement for aggregate and is typically well

- graded enough in size to avoid the need for
blen ding with other fine aggregates to meet gradation requirements [Footnote 54: EPA, Wastes

Resource Conservation

- Reduce, Reuse, Recycle

- Industrial Materials Recycling: Bottom Ash, at http://www.epa.gov/osw/conserve/rrr/imr/ccps/bottomash.htm. The porous s urface structure of bottom ash particles make this material less durable than conventional aggregates and better suited for use in road building as base course and shoulder mixtures or in cold mix applications, as opposed to wearing surface mixtures. This porous surface structure also makes this material lighter than conventional aggregate and useful in lightweight concrete applications. Id. ¶ The Proposed Rule defines bottom ash as a “the agglomerated, angular ash particles, formed in... [PC] furnaces that a re too large to be carried in the flue gases and collect on the furnace walls or fall through open grates to an ash hopper at the bottom of the furnace.” 75 Fed. Reg. at 35,130.]. Notably, the arsenic content of bottom ash produced by burning either subbit uminous and bituminous coal types is in the same range as the arsenic content of Class C subbituminous fly ash (i.e., significantly lower than that found in Class F bituminous fly ash). The arsenic content of bottom ash ranges from 18 mg/kg for subbitumino us bottom ash to 9.03 mg/kg for bituminous (see Figure 3 below) [Footnote 55: EPRI, Tables of Summary Statistics for TRI Trace Element Concentrations in Fuels from the Pisces Database, August 14, 1998.]. Just as it is unreasonable to group Class C and Clas s F fly ashes together for purposes of regulation under RCRA, it is unreasonable to group bottom ash with Class F fly ash for purposes of regulation under RCRA, given its much lower arsenic content. It was arbitrary for EPA to assume that bottom ash would leach metals to the same extent as fly ash when it has a lower metal content to begin with, and therefore there is a hard cap on the total quantity of metals that can be leached from it. It also is arbitrary to group bottom ash with Class C fly ash; althou gh they have similar metals content, their different physical and chemical properties make the risk profiles of these materials insufficiently similar to allow them to be grouped under Subtitle C. [See original comment for Figure 3. Comparisons of Arsenic, Cadmium, Cobalt and Selenium Concentrations Bottom Ash (Bituminous versus Subbituminous)]

- Boiler Slag is a type of bottom ash formed in cyclone

- boilers and it only occurs when bottom ash is heated up enough that it becomes molten. The slag is formed afte r that molten material is quenched with water. The quenching causes the molten ash to crystallize, fracture and then form pellets that are made up of hard, black, angular particles that have a smooth, glassy appearance. Boiler slag’s metal content is simil ar to that of bottom ash, given the way it is formed. Boiler slag particles tend to be uniform in size and are resistant to wear. Their permanent black color makes them desirable for asphalt applications and for use in the melting of snow. Since the
number of cyclone boilers in service has decreased, the total quantity of boiler slag generated each year has been decreasing [Footnote 56: EPA, Wastes

- Resource Conservation

- Reduce, Reuse, Recycle

- Industrial Materials Recycling: Boiler Slag, at http://www.epa.g ov/osw/conserve/rrr/imr/ccps/boilslag.htm. The Proposed Rule defines boiler slag as the molten bottom ash collected... [in] cyclone type furnaces that is quenched with water. It is made up of hard, black, angular particles that have a smooth, glassy appearan ce.” 75 Fed. Reg. at 35130.]. Boiler slag, unlike the other ash

- derived byproducts, has a crystalline structure caused by the rapid cooling of a molten material. This crystalline structure necessarily makes slag less susceptible to infiltration, and as a r esult less likely to leach metals under real world conditions. But again, EPA has arbitrarily elected to group it in with the other types of CCRs.

- FGD Materials. Unlike fly ash or bottom ash, FGD materials are not a direct result of the combustion process , but rather are produced by a chemical reaction used to reduce sulfur dioxide365

in the exhaust gas from a coal

- fired boiler. Scrubbers can be either wet or dry and the physical characteristics of the materials they produce vary from a wet sludge to a dry po wdery material. The wet scrubbing process produces a wet sludge that is primarily calcium sulfate using a lime

based reagent. Dry scrubbers produce a dry powdered material that is captured in a bag house
and consists of a mixture of calcium sulfites and ca lcium sulfates. FGD calcium sulfite can be used for embankments and as road base, while FGD calcium sulfate is identical to natural gypsum and can be used as a substitute for natural gypsum (which has to be mined) in the manufacture of wallboard {Footnote 57: EPA, Wastes

- Resource Conservation

- Reduce, Reuse, Recycle

- Industrial Materials Recycling: Flue Gas Desulfurization Material, at http://www.epa.gov/osw/conserve/rrr/imr/ccps/fgd.htm. The Proposed Rule defines FGD material as “the material produced throu gh a process used to reduce sulfur dioxide (SO2) emissions from the exhaust gas system of a coal

- fired boiler. The physical nature of these materials varies from a wet sludge to a dry powdered material, depending on the process, and their composition compr ises either sulfites, sulfates or a mixture thereof.” 75 Fed. Reg. at 35,130.]. Unlike the ash

- derived wastes above, the FGD materials, which are the result of a chemical reaction, are more chemically pure and do not contain the metals at issue in the Prop osed Rule in any meaningful quantities. For example, a 2010 EPRI survey showed that the typical (10th to 90th percentile) concentrations of FGD Gypsum are lower than that of United States average soil, (see Figure 4 below, which also shows a similar trend for bottom ash) [Footnote 58: EPRI, Comparison of Coal Combustion Products to Other Common Materials 9

- 5. (November 2010).]. [See original comment for Figure 4. Comparison of Metal Content of Various CCRs (Including FGD Materials) versus United States Soil s and Other Common Materials] Therefore, FGD materials effectively have no potential to leach metals in any meaningful quantities to groundwater. As a result, it was plainly arbitrary for EPA to propose regulating those materials under Subtitle C, especial ly considering the regulatory/ financial burden that will accompany such a listing. Moreover, as the Agency knows, there will be a material increase in the quantity of FGD waste generated each year as a result of recently adopted and/or proposed regulation s under the Clean Air Act which require more EGUs to install scrubbers

– an increased volume of FGD materials will only compound the burdens on EGUs if the Agency continues to pursue a Subtitle C approach. As demonstrated above, there are readily apparent physical and chemical differences in the various substances that make up EPA’s CCR waste class under the Proposed Rules. Yet, EPA offers no meaningful justification for why these materials should not be considered separately, despite the fact that each of the distinctions identified above have a material impact on the potential for these materials to leach metals

– which is the basis for EPA’s proposed Subtitle C listing. Moreover, EPA’s apparent unwillingness to consider the CCR materials individually here is troubling because of analyses presented in its own risk assessment, where it expressly considered CCRs generated by fluidized bed combustion boilers (“FBC”) separately from other CCR materials [Footnote 59: EPA, DRAFT Human and Ecological Assessment of Coal Combustion Wastes p. ES

- 1

– ES

- 2 (April 2010) (“EPA April CCW Assessment”).]. EPA appears to justify that choice because the lime injected into the boiler as part of the FBC combustion process makes the resultant FBC CCR materials more alkaline (i.e. , less likely to leach metals) [Footnote 60: “CCW porewater constituent data did show that FBC wastes and codisposed ash and coal refuse (coal waste from coal crushers and other coal preparation and handling operations) differ366

significantly from coal combu stion ash in their composition and leachate chemistry, so these wastes were addressed separately in the risk analysis. FBC waste chemistry is impacted by the limestone injected with coal in FBC units for sulfur capture and tends to be very alkaline with
hi gh levels of calcium and sulfate.” Id. at A

- 4 (internal citations omitted).]. However, the same rationale should have caused EPA to evaluate FGD materials separately from other CCRs, given that they are more alkaline, like the FBC wastes, and generally spe aking have much lower metals levels, and therefore are much less likely to leach any constituents of concern to groundwater. Similarly, EPA should have evaluated Class C fly ash separately from Class F fly ash, especially considering the fact that at least one third of EGUs in service today burn exclusively
subbituminous coal. In sum, the chemical and physical differences in the CCR materials alone demonstrate that EPA’s proposal to regulate all CCRs as one class is arbitrary and capricious. Moreover, EPA

c annot justify its actions based solely on the fact that many of these waste have historically been disposed of together. These materials are generated in different physical areas of a typical EGU, and therefore are handled separately, at least initially. T hat they are not currently disposed of separately in some cases is irrelevant for purposes of the Subtitle C analysis, because CCRs are not hazardous and can be handled like other solid waste at this time (which status EME believes should be retained going forward). Even though some EGU’s comingle their CCRs for disposal, if in the future one subset of CCRs were determined to warrant Subtitle C listing, then all EGUs would be responsible for segregating the hazardous waste stream from other materials.
Other wise the entire comingled waste stream would be treated as hazardous, consistent with longstanding EPA rules and policy regarding the mixing of hazardous and non

- hazardous waste. Therefore comingling cannot be, and never has in practice been, a justificati on for listing a
discrete non

- hazardous waste as hazardous waste

Response: The Agency acknowledges and appreciates the comment. 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 further referred to the Response to Comment document addressing definitions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08246

- 1 

### Organization 1 

### : Stinson Morrison Hecker LLP on behalf of Kansas City Board of Public
Utilities 

### Commenter 1 : Parthenia B. Evans and Dennis Lane Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 9.6.2 10.4.2 9.2.1 

### Comment Excerpt Text: BPU questions: (a) the need an d justification for engrafting further federal regulations on the current system, and, in particular, the lack of justification for imposing a federally mandated and federally enforced scheme; (b) the suggestion that a special waste designation for CCRs un der subtitle C would not severely impair the currently robust beneficial uses of CCRs: and, (c) whether the costs related to any change outweighs the possible benefits of a change. On this latter point, BPU is concerned that EPA fails to appreciate the sev ere economic impact that the367

proposed regulations will have on financially

- strapped State and local governments as well as on
businesses.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08248

- 1 

### Organization 1 

### : Institute for Policy Integrity 

### Commenter 1 : Jason A. Schwartz Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.1 

### Comment Excerpt Text: I. EPA Should Consider Costs and Benefits when Determining Whether to Regulate CCRs under
Subtitle C

RCRA clearly gives EPA discretion to determine whether regulation of CCRs under Subtitle C is “unwarranted.” Given Executive Order 12,866, this determina tion should include prudent use of

cost

- benefit analysis. The Bevill Regulatory Determinations should be reversed if the net societal benefits from regulation under Subtitle C are higher than other regulatory options.

RCRA Gives EPA Substantial Discretio n to Regulate CCRs under Subtitle C

The statutory authority to regulate CCRs under Subtitle C of RCRA is given by subsection 3001(b)(3)(C):

[T]he Administrator shall, after public hearings and opportunity for comment, either determine to promulgate reg ulations under [Subtitle C] for each waste listed in subparagraph (A) [including CCRs] of this paragraph or determine that such regulations are unwarranted. The Administrator shall publish his determination, which shall be based on information developed or accumulated pursuant to such study, public hearings, and comment, in the Federal Register accompanied by an explanation and justification of the reasons for it.

This determination is known as the “Bevill Regulatory Determination.” The relevant informati on that the Administrator must use includes a study mandated by subsection 8002(n):

The Administrator shall conduct a detailed and comprehensive study and submit a report on the adverse effects on human health and the environment, if any, of the disposal and utilization of [CCRs]. Such study shall include an analysis of

—

(1) the source and volumes of such material generated per year; (2) present disposal and utilization practices; (3) potential danger, if any, to human health and the environment from the disposal and reuse of such materials;368

(4) documented cases in which danger to human health or the environment from surface runoff or leachate has been proved; (5) alternatives to current disposal methods; (6) the cost of such alternatives; (7) the impact of those alternatives on the use of coal and other natural resources; and (8) the current and potential utilization of such materials.

In furtherance of this study, the Administrator shall, as he deems appropriate, review studies and
other action s of other Federal and State agencies concerning such material and invite participation by other concerned parties, including industry and other Federal and State agencies, with a view toward avoiding duplication of effort....

These two subsections are t he only statutory guidance that EPA is given in making the Bevill Regulatory Determination. [Footnote 1: It should be noted that, for example, there is no requirement that CCRs meet the statutory or regulatory definitions of “hazardous waste.” The
directiv e in subsection 8002(n) of the Resource Conservations and Recovery Act to submit a study on the “the adverse effects on human health and the environment” bears some relation to part of the statutory definition of “hazardous waste” in subsection 1004(5) (“a solid waste, or combination of solid wastes, which because of its quantity, concentration, or 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, illness; 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.”). However, this merely
confirms that these statutory provisions share the goal of protecting the environment and human health. 2 Entergy Corp. v. Riverkeeper, Inc., 129 S.Ct. 1498, 1509 (2009).]

Recently, in Entergy v. Riverkeeper , the Supreme Court affirmed that just because a statute does

not re quire analysis of costs or benefits does not necessarily mean an agency cannot perform

cost

- benefit analysis. [Footnote 2: Entergy Corp. v. Riverkeeper, Inc., 129 S.Ct. 1498, 1509 (2009).] Entergy more generally supports the proposition that broad statutor y language allows EPA to weigh the social costs and benefits of regulation unless doing so is directly contrary to
the statute.

In this case, the broad statutory mandate is contained in subsection 3001(b)(3)(C). EPA need only determine whether or not Sub title C regulations for CCRs would be “unwarranted.” While this determination must be based on all the information accumulated in the course of the required study, public hearings, and public comments, Congress mandated several substantive areas of
conside ration in subsection 8002(n). These areas include environmental damage and adverse human health effects [Footnote 3: Resource Conservation and Recovery Act §§ 8002(n), (n)(3), 42 U.S.C. § 6982 (1976) [hereinafter RCRA].] and the cost of alternatives to cur rent disposal methods. [Footnote 4: Id. at §§ 8002(n)(5)

- (6).] These two factors encompass the health and environmental benefits of proposed regulations as well as the costs of the alternative disposals that would be mandated by the potential regulations. The other criteria are all areas that would need to be analyzed in any reasonable cost

- benefit analysis.[Footnote 5: Id. at §§ 8002(n)(1), (2) and (8) are all relevant to designing a baseline for a cost

- benefit analysis. RCRA § 8002(n)(4) is
relevant to de termining the costs in the baseline. RCRA § 8002(n)(7) contains ancillary costs and369

benefits of the rule.] As a result, EPA would be allowed to base its determination under subsection 3001(b)(3)(C) on a prudent cost

- benefit analysis.

In the past, EPA has not explicitly interpreted these sections of RCRA in this manner. [Footnote 6: For example, the 1993 Bevill Regulatory Determination declined to regulate CCRs from coal

fired electric utilities under Subtitle C because of "limited risks. . . and the exist ence of generally adequate State and Federal regulatory programs." 58 Fed. Reg. 42,466. Of course, this could be reformulated to be a claim about the net benefits of Subtitle C regulation.] But under the Supreme Court doctrine established by Chevron v. NRD C , courts will uphold any reasonable agency interpretation of an ambiguous term, regardless of whether it is the “best” or “most reasonable” interpretation. [Footnote 7: Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843

- 844 (1984).] So long as the reinterpretation is neither arbitrary nor capricious, it is perfectly acceptable for EPA to issue another reasonable interpretation of the relevant sections of RCRA. [Footnote 8: See Nat’l Cable & Telecomm. Assoc. v. Brand X Internet
Servs. , 545 U.S. 967 (2005) (explaining that Chevron review applies to agency changes of legal interpretations, quoting Chevron, 467 U.S. at 865

- 66); id. at 981

- 82 (Rehnquist, J., concurrent in part, dissent in part) (explaining that changes in administration ar e legitimate grounds for changing agency interpretations).]

Response: The Agency acknowledges and appreciates the comment. The commenter is further referred to the RIA supporting this rule for a discussion of the costs associated with implementation of the rule. Moreover, any comments addressing the proposed subtitle C option are outside the scope of this rulemaking.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08253

- 2 

### 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: 5.6.4 

### Comment Excerpt Text: 2 Current Practices: EPA's proposed rule is based on insufficient and inaccurate information about current CCR practices. For example, EPA has not sufficiently researched current CCR disposal practices, including the extent to which these materials are being regulated by the states today. EPA has also not adequately investigated or considered acti ons currently underway by many states to improve CCR disposal standards. EPA also continues to overestimate the number of active CCR management ponds and as a consequence over

- estimates both the risk posed by these facilities and the benefits of the propos ed rules as calculated and discussed in the Regulatory Impact Analysis.

This lack of due diligence appears to have led EPA to a false conclusion that directiy contradicts testimony provided by EPA in its 1999 Report to Congress. That report, which was th e result of370

a much more thoughtful and deliberate review, stated the following regarding CCR management practices:

"Current management practices and trends and existing state and federal authorities appear adequate for protection of human health and the envirormaent. State programs increasingly require more sophisticated environnmental controls, and tend to focus on utility waste management due to the high waste volumes. For example, the frequency of environmental inspections at utilities is among the hig hest of all the major industrial sectors in the United
States."

The TVA CCR release at Kingston, TN, indicates that opportunities for improved or increased oversight related to structural integrity concerns remain, but it is unclear what role, if any, st ate oversight or lack thereof played in this incident. The results of EPA's nation

- wide CCR impoundment structural safety and integrity assessments clearly show that the Kingston design issue was an anomaly. In fact, of the more than 120 CCR impoundments i nspected to date, none have received an "unsatisfactory" rating (i.e., no impoundment has been found to present a threat of a catastrophic release similar to what occured at the Kingston facility). However, due to the Kingston event, sensitivity to this is sue is now at an all time high among states and utilities, which will lead to increased inspection efforts regardless of any future EPA action.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08270

- 7 

### Organization 1 

### : Cliffs Natural Resources Inc. (Cliffs) 

### Commenter 1 : David Z. Skolasinski Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2. 1.1 3.1.2 3.4.1.4.6 

### Comment Excerpt Text: The Subtitle C Proposal To Regulate Inactive And / Or Previously Closed Surface Impoundments Is Unlawful

EP A proposes to extend RCRA Subtitle C jurisdiction to previously closed and/or inactive CCR surface impo undments (75 Fed. Reg. at 35,177). Even if such impoundments do not receive CCRs after the effective date of the rule, EPA would require these impoundments to close in compliance with the proposed rule. EPA attempts to tie this requirement to a new theory based on "passive leaking;" a theory that the federal cOUli of appeals has struck down in several circuits. However, EPA lacks jurisdiction under RCRA over such impoundments, and its attempt to retroactively extend regulation over them is arbitrary and cap ricious because it is inconsistent with EPA's prior rulemakings.

The language ofRCRA contemplates the regulation only of units that operate after the effective date of the relevant RCRA rulemaking. EPA itself admitted in 1980 that:371

RCRA is written in th e present tense and its regulatory scheme is organized in a way which seems to contemplate coverage only of those facilities which continue to operate after the effective date of the regulations. The [then] Subpmi D standards and [then] Subpmi E permitting procedures are not directed at inactive facilities.

43 Fed. Reg. 58,984. Because the statutory language is clear that only operating facilities should be subject to what are now the Subtitle C hazardous waste regulatory requirements, EPA's proposal to r egulate previously closed and inactive impoundments containing CCRs is unlawful.

EPA also recognized in 1980 that: Enormous technical, legal, and economic problems would arise if these standards were to be directly applied to inactive facilities [i.e., those facilities which have ceased operating prior to the effective date of the Subtitle C regulations] and all such facilities were required to upgrade. Such an approach also does not seem equitable because of the enormous difficulty of bringing a closed facility into compliance, and because the present owner of land on which an inactive site is located might have no connection (other than present ownership of the land) with the prior disposal activities.

Id. For these reasons also, EPA decided in 1980 n ot to regulate closed or inactive facilities that were managing wastes being brought into the Subtitle C management system.

EP A provides no meaningful justification in its CUlTent proposal for reversing its earlier decision not to subject such units to regulation. In 1980, when EPA promulgated the Subtitle C rules, the agency decided, based on a multitude of reasons (legal, practical, economic, equitable, and technical) that the regulations and permitting would not apply to the thousands of closed and
in active surface impoundments in essentially every industry in America.

Now, in an about

- face, EPA reverses course and tries unsuccessfully to justify the retroactive nature ofits current proposal by arguing in just a few sentences that the units contain l arge amounts of CCRs and generally refers to the "significant risk" these units impose to justify the change in regulatory approach (75 Fed. Reg. at 35,177). EPA's proposal to regulate closed and inactive surface impoundments containing CCRs is arbitrary a nd capricious, and should be
abandoned in the final rule.

Response: The Agency is regulating the disposal of CCR under subtitle D of RCRA. The Agency has also determined that regulation of inactive CCR surface impoundments as defined in section 257.53 is appropriate and necessary as discussed in Unit VI of the preamble supporting this rule. The commenter is referred to the applicability section of the preamble for a complete discussion.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08840

- 7 

### Organization 1 

### : Electric Power Generation Association 

### Commenter 1 : Douglas L. Biden
Comm enter Type: Trade Association
Classification: Substantive Comment Category:372

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: C. EPA Has Chosen to Ignore the Views of PADEP as Well as Those of Federal and State Agencies and Organizations on the Proper Regulatory Mechanism for Managing CCRs

EPGA believes that the Subtitle C option disregards the nearly unanimous views of the federal and state agencies, with which the Bevill Amendment directs EPA to consult in reaching a final regulatory d etermination, that Subtitle C regulation is not warranted for CCRs.

In his letter to Matt Hale (4/10/2009), Tom Fidler stated the following:

"DEP understands EPA is considering three options for managing coal combustion waste: as
hazardous waste under RC RA Subtitle C, as industrial waste under RCRA Subtitle D, or a combination of the two. We believe regulation of coal combustion waste as hazardous waste is unnecessary, as none of these wastes generated by Pennsylvania power plants has been observed
to exh ibit characteristics of hazardous waste.

In summary, the broad classification and regulation of coal ash as a hazardous waste is not supported by science... From our perspective, regulation of coal combustion wastes under
Subtitle D affords sufficient env ironmental protection and allows beneficial use opportunities."

In his testimony in Pittsburgh (9/21/2010), Mike Forbeck couldn't have stated PADEP's position any more clearly or strongly: "Pennsylvania does not believe that additional regulations for the management of coal ash beyond RCRA Subtitle D are warranted. Classifying coal combustion residues under RCRA Subtitle C would create unnecessary burdens to current management practices without producing any greater degree of environmental or public health protection. The Commonwealth opposes the rulemaking for Subtitle C and is in support of a Subtitle D proposal with implementation authorization with the States."

The Environmental Council of the States ("ECOS") also expressly opposed

EPA's proposed regu lation of CCRs under Subtitle C, stating ECOS: [FN 9: ECOS, Revised
Resolution Number 08

- 14 (Mar. 23, 2010).]

"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 u nder RCRA Subtitle c. .."

And lastly, the Association of State and Territorial Solid Waste Management Officials ("ASTSWMO") stated in a letter (ASTSWMO to EPA (at pp. 4

- 5,4/1/2009), the following:

"To artificially classify [coal combustion products (CCB) ] as hazardous will needlessly limit the management options for both the CCBs and other wastes legitimately classified as hazardous which will be competing with CCBs for limited hazardous waste disposal capacity, while not producing any great degree of env ironmental protection. Transportation, manifesting and licensing requirements for CCBs as a listed hazardous waste are excessively burdensome without373

sufficient evidence of a benefit. It would be more appropriate to regulate and manage CCBs using design an d operation standards specified for Subtitle D programs except in cases where a particular source material is deemed hazardous upon testing for characteristics."

In short, the statute and its legislative history make clear that EPA was to seek the assista nce and cooperation of federal and state agencies in making a regulatory determination. EPA's selection of the Subtitle C option would be directly contrary to the unanimous opinion of these informed parties and to Congress' directive that EPA produce a col laborative, informed regulatory option

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08844

- 10 

### Organization 1 

### : National Mining Association (NMA) 

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



### Comment Excerpt Te xt:
2. The D.C. Circuit Has Ruled that the Bevill Amendment Established a One

- Time Study, Report, and Regulatory Determination Process

In Solite Corp. v. EPA, 952 F. 2d. 473 (D.C. Cir. 1991), NMA argued that future waste streams
from the mineral processing industry should be eligible for the Bevill study, report and Regulatory Determination process before they were subject to Subtitle C regulation. Parallel provisions of the Bevill Amendment establish the same study, report and regulatory
determin ation process for wastes generated from the extraction, beneficiation, and processing of ores and minerals as are established for CCRs. 42 U.S.C. § 6982(p). In Solite, NMA challenged EPA's decision that only those mineral processing wastes that were genera ted between 1983 and 1988 were eligible for Bevill Amendment coverage, 54 Fed. Reg. at 36,596, and that processing wastestreams generated at some future point would therefore be subject to Subtitle C regulation.

In denying NMA's challenge, the D.C. Circui t relied on the explicit language of the Bevill Amendment for extraction, beneficiation, and processing wastes, which is virtually identical to the Bevill Amendment language for CCRs. The Court stated as follows:

The statutory provision directing EPA to s tudy Bevill wastes suggests by its terms that a one

time study is sufficient. See 42 U.S.C. § 6982(p) ("The Administrator shall conduct a detailed and comprehensive study.... [and] shall publish a report of such study.. . .").

Solite, 952 F.2d at 491.

Th e Court adds that:374

The way in which the temporary nature of the Bevill Amendment is expressed in the statute also lends support to EPA's interpretation [that the Bevill Amendment establishes a one

- time Bevill process]. See 42 U.S.C. § 6921(b)(3)(A) (Bevil l exclusion operative "until at least six months after....submission of the applicable study").

Id. Finally, the Court states that:

In any event, this court's holding in EDF II secures EPA's position that a one

- time determination
is sufficient. There we interpreted the Bevill Amendment as an exclusion specifically for "the category of wastes designated as 'special wastes[]".... in EPA's 1978 proposed hazardous waste regulations." EDF II, 852 F.2d at 1329 (quoting 51 Fed. Reg. 36,234 (1986». While we did n ot go so far as to foreclose Bevill status for a future waste that might satisfy a pre

- set criterion, we clearly enough rejected the theory that Congress intended the coverage of the Bevill exclusion to
evolve with time.

Id. The D.C. Circuit has already r uled that the Bevill Amendment creates a onetime Bevill study, report and regulatory determination process. Therefore, EPA cannot pursue its proposed Subtitle C option.

It is also important to emphasize that EPA

- in Solite and during the challenged rulemak ing

- took a position diametrically opposed to the one it espouses today, i.e., EPA then argued that the Bevill
Amendment established a one

- time process. In a notice of proposed rulemaking that was part of the regulatory history of the rule challenged in Sol ite, EPA stated that:

Both the administrative record and Congressional intent clearly indicate that the Bevill Amendment was intended to provide a temporary exclusion, pending further study, over a fixed time period. Congress directed EPA to conduct a sin gle study of wastes generated by mineral mining and processing facilities, because of concern that existing wastes might not be readily amenable to Subtitle C controls and might pose relatively low hazard to human health and the environment. Moreover, cont rary to some commenter's assertions, the statutory language includes explicit time limits on the Bevill exclusion, which apply to the submission of the required Report to Congress and subsequent regulatory determination.

In addition, EPA believes that mak ing a one

- time reinterpretation is not contrary to the interests of either industry or the environment. With regard to the concern raised by several commenters that the development of new technologies would be stifled, EPA notes that any new wastes generat ed in the future will be regulated under an established regulatory scheme (i.e., either the Subtitle C or D program). Therefore, rather than facing regulatory uncertainty and incentives to generate large volumes of any new mineral processing wastes, indust ry will instead have substantial knowledge of the regulatory regime that it will face.

54 Fed. Reg. 15,316, 15,338 (April 17, 1989).

In justifying its position that the Bevill amendment created a one

- time obligation in Solite, EPA
then stated to the D.C. Circuit in its Brief for Respondent that:375

This decision followed from EPA's reading of congressional intent based on the statutory language and scheme of sections 3001(b)(3) and 8002(p) of RCRA, which establish a temporary exclusion for a fixed period of time and which fail to expressly impose a continuing obligation to study new wastestreams. EPA's construction was also based on other indicia, such as the strict statutory time periods governing the mineral processing waste exclusion in section 3001(b)(3) (A) of RCRA. 54 Fed. Reg. at 15,338; 54 Fed. Reg. at 36,956. From this evidence of congressional intent, EPA reasonably determined that Congress authorized EPA to make a one

time interpretation or snapshot of mineral processing wastes, rather than a contin uing series of studies and regulatory determinations....

Brief for the Respondent, Solite Corp. v. EPA, at 68, May 8, 1991 (Final Brief). EPA concluded
that:

There is nothing in the statute itself which suggests that the Bevill process should be an ongoi ng, evolving process, with updated reports to Congress and regulatory determinations.

Brief for Respondent, Solite Corp. v. EPA, at 69, May 8, 1991 (Final Brief).

EPA should not be allowed to reverse the position it previously took in a parallel Bevill

r ulemaking and before the D.C. Circuit. For this reason also, EPA's Subtitle C option cannot
move forward

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preamble for a discussion on our decis ion to regulate CCR under
subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bev ill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08844

- 11 

### Organization 1 

### : National Mining Association (NMA)


### Commenter 1 : Tawny A. Bridgeford Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.5 

### Comment Excerpt Text: B. Even if EPA was Authorized to Reverse its 1993 and 2000 Regulatory Determinations, EPA has Failed to Comply with the Statutorily

- Mandated Bevill Process

In the proposed rule, EPA states that it "is reevaluating its August 1993 and May 2000 Bevill Regulatory Determinations regarding CCRs generated at electric utilities and independent power producers." 75 Fed. Reg. at 3 5,148. Even if EPA had the authority to reverse its August 1993 and376

May 2000 Bevill Regulatory Determinations, which it does not as demonstrated above, EPA has failed to go through the Bevill process before proposing a reversal of the Bevill Regulatory

Det erminations, and therefore cannot proceed with its Subtitle C option.

As stated above, the Bevill process as established by Congress must include each of the following steps:

1) EPA must study CCRs pursuant to the eight study factors;

2) EPA must then s ubmit a Report to Congress, i.e., a report on such study and the findings of the study to the House Committee on Energy and Commerce and the Senate Committee on Environment and Public Works; and

3) Following submission of the Report to Congress to the enu merated congressional committees, EPA must conduct public hearings and provide an opportunity for comment on the Report, and then either determine to promulgate regulations under Subtitle C or determine that such regulations are not warranted.

4) If EPA d etermined that such regulations were warranted, then engage in a notice and comment regulation to promulgate the regulations.

EPA has failed to comply with this special Bevill process. First, its purported analysis of the eight Bevill study factors as ap plied to CCRs is insufficient and superficial. Among other things, EPA is explicitly required to evaluate the "costs of alternatives" to current disposal methods. EPA's evaluation of the costs to the industry of the Subtitle C options in the proposed rule is woefully lacking in scope and depth.

Moreover, EPA has not even attempted to argue that it has met the Report to Congress prong of the Bevill process. Prior to EPA's proposal to reverse its 1993 and 2000 Regulatory Determinations and adopt a Subtitle C approach for CCRs, EPA has not prepared a Report and did not submit a Report to the enumerated Congressional committees before proposing to reverse its Regulatory Determinations in the proposed rule.

In addition, EPA's proposal to reverse its 1993 and 20 00 Regulatory Determinations is not based, as explicitly required by statute, on public hearings and public comment on the non

- existent Report to Congress. Therefore, EPA has not met its statutory obligation which conditions any Regulatory Determination on an evaluation of the results of such public hearings and any comments on the Report to Congress. See EDF, 852 F. 2d. at 1314. ("The statute clearly states that the agency is to base its regulatory determinations on the information gathered for the § 8002( p) [the extraction, beneficiation and processing waste] study").

The legislative history supports this reading. Representative Bevill, the sponsor of the statutory amendment that bears his name, stated explicitly that any EPA regulatory determination woul d377

be based in part on the public hearings and any comments that were submitted on the Report to Congress. "Finally, let me direct the House's attention to the fact that after EPA concludes these studies, it will be required to obtain public views on them a nd to make known whether as a result of this process EPA believes any regulation of these materials is necessary." 126 Congo Rec. at

3362.

Finally, EPA's proposed rule envisions a decision

- making process involving the simultaneous reversal of the prior Re gulatory Determination for CCRs, the issuance of a new regulatory determination for CCRs, and the adoption of new Subtitle C regulations for CCRs. This accelerated approach violates the sequential nature of the Bevill process established by Congress,

which provided for a regulatory determination to be followed at a later time by subsequent issuance of regulations.

To the extent EPA is authorized to reverse its 1993 and 2000 Regulatory Determinations, it cannot do so without complying with the statutorily m andated Bevill process. EPA's failure to do so prevents it from proceeding with the Subtitle C option

.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preamble for a discussion on our decisio n to regulate CCR under
subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevil l Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08844

- 9 

### Organization 1 

### : National Mining Association (NMA) 

### Commenter 1 : Tawny A. Bridgeford Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 2.1.4 

### Comment Excerpt Text:

II. EPA'S REEXAMINATION OF THE BEVILL STATUS OF WASTES FROM THE
COMBUSTION OF FOSSIL FUELS

A. EPA Lacks the Auth ority to Reverse its 1993 and 2000 Bevill Regulatory Determinations Regarding CCRs

EPA proposes two alternative regulatory approaches for the regulation of CCRs. The so

- called Subtitle C option would require EPA to reverse its prior August 1993 and May 20 00 Regulatory Determinations for CCRs. It is clear from RCRA, relevant case law, and EPA's prior positions in Bevill cases that EPA lacks the authority to reverse its August 1993 and May 2000 Bevill Regulatory Determinations regarding CCRs.378

1. The Bevill Amendment Establishes a One

- Time Special Process For Making Bevill Regulatory Determinations

Congress enacted RCRA in 1976. Subtitle C of RCRA, 42 U.S.C. §§ 6921

- 6931, generally established a "cradle to grave" management scheme governing the generation, t ransportation, treatment, storage and disposal of the hazardous wastes that would be subject to this stringent RCRA Subtitle C program.

On December 18, 1978, EPA proposed regulations identifying hazardous waste under RCRA Subtitle C. 43 Fed. Reg. 58,946 ( Dec. 18, 1978). EPA proposed to regulate wastes from fossil fuel combustion, including CCRs, as well as certain other wastes, as "special wastes." 43 Fed. Reg. at 59,015. The EPA 1978 proposal explained that special wastes would be subject to fewer regulat ory requirements because they were generated in "very large volumes," "posed relatively low" risks, and "were not amendable [sic] to the control techniques" proposed for hazardous waste treatment, storage and disposal. 43 Fed. Reg. at 58,992.

EPA abandone d the special waste concept, however, when the agency promulgated final hazardous waste regulations in 1980. 45 Fed. Reg. 33,084 (May 19, 1980). Thus, EPA's final rule, which was scheduled to take effect on November 19, 1980, would have treated CCRs as

any other waste, subject to the full requirements of the final RCRA Subtitle C regulations.

Recognizing the absurdity of regulating CCRs and other special wastes in such an inflexible, onerous manner, Congress stepped in before the effective date of the fina l Subtitle C regulations and provided relief in October 1980 with the Bevill Amendment. See 42 U.S.C. §§ 6921(b)(3)(A), (c)6982(n). As a counterpoint to EPA's prior actions described above, the Bevill Amendment established a special process which EPA was r equired to follow before CCRs and the other special wastes could be regulated as hazardous wastes under Subtitle C of RCRA. See also, Environmental Defense Fund v. EPA, 852 F.2d 1309, 1314 (D.C. Cir. 1988) (EDF) ("Indeed, our reading of the statute and leg islative history strongly suggests that Congress designed the Bevill Amendment to break with the previous approach to regulation of hazardous industrial wastes.").

First, the Bevill Amendment established a temporary exemption from regulation under Subtitl e C, until the completion of the study and submittal of the report described below. 42 U.S.C. § 6921(b)(3)(A). Congress directed EPA to conduct a "detailed and comprehensive study" on the
adverse effects on human health and the environment of CCRs and othe r special wastes. 42 U.S.c. § 6982(n). In contrast to the manner in which EPA otherwise was going to decide how to determine if wastes were hazardous and subject to Subtitle C under the regulations that were to become effective on November 19, 1980, Congre ss expressly directed that the Bevill study include an analysis of:

1) the source and volumes of CCRs generated per year;

2) present disposal and utilization practices;379

3) potential danger, if any, to human health and the environment from the disposal a nd reuse of such materials;

4) documented cases in which danger to human health or the environment from surface runoff or leachate has been proved;

5) alternatives to current disposal methods;

6) the costs of such alternatives;

7) the impact of those a lternatives on the use of coal and other material resources; and

8) the current and potential utilization of such materials.

Third, Congress directed that EPA publish a report on such study, which was to include "appropriate findings," not later than 24 months after October 21, 1980. [d. The Bevill Report
was to be submitted to the Committee on Environment and Public Works of the United States Senate and the Committee on Energy and Commerce of the United States House of Representatives. [d.

Fourth, the B evill Amendment further stipulated that within six months after the Report to Congress, EPA, after public hearings and the opportunity for comment, had to determine whether to promulgate regulations under Subtitle C for CCRs, or determine that such regulat ions were unwarranted. 42 U.S.C. § 6921(b)(3)(C). Finally, if EPA determined that such regulations were warranted, EPA could then engage in notice and comment rulemaking to promulgate the Subtitle C regulations. See American Portland Cement Alliance v. EPA , 101 F.3d 772, 775 (D.C. Cir. 1996) ("Section 3001(b)(3)(C) provides that the product of the notice and comment process [on the Report to Congress] will be a determination of whether regulation is warranted in the future, not regulations themselves.")

EP A failed to meet the Bevill Amendment's statutory deadline of October 21, 1980, for publication of a Report to Congress on fossil fuel combustion wastes. In Gearhart v. Reilly, No.
91

- 2435 (D. D.C. June 30, 1992), EPA entered into a Consent Decree which di vided fossil fuel combustion wastes into two categories, and agreed to follow the Bevill process separately for the two categories. EPA had actually published its First Report to Congress on fossil fuel
combustion wastes from coal fired utilities on March 8, 1988. 53 Fed. Reg. 9976 (Mar. 28, 1988). On August 9, 1993, EPA issued a regulatory determination that regulation of four large volume fossil fuel combustion wastes from coal fired utilities (fly ash, bottom ash, boiler slag, and flue gas desulfurizatio n waste) as hazardous is "unwarranted" under RCRA Subtitle C. 58 Fed. Reg. 42,466.

In the second phase of the Bevill utility industry process, EPA addressed issues of co

management, ash derived from co

- burning of coal from non

- hazardous solid waste, ash d erived from clean coal combustion, and combustion residues from burning oil and natural gas. EPA submitted its second utility Report to Congress on March 31, 1999. 64 Fed. Reg. 22,820 (April 28, 1999). On April 25, 2000, EPA issued its Phase II Regulatory Determination. 65 Fed. Reg.380

32,214 (May 22, 2000). EPA concluded in the Phase II Bevill Regulatory Determination that hazardous waste regulation under Subtitle C for the remaining fossil fuel combustion wastes "[was] not warranted." 65 Fed. Reg. at 32,215. EPA reserved the right to revise this determination. See Id. at 32,215 & 32,218.

An analysis of the Bevill Amendment reveals that the above

- described special Bevill process established by Congress provided for a one

- time evaluation of CCRs and the other special wastes that cannot be subsequently reversed. First, the Bevill Amendment by its terms calls for a "study" and a "report." 42 U.S.C. §§ 6982(n). The use of the singular, as well as the statutory context, means that Congress deliberately established a one

- time study and one

- time Report to Congress obligation. Similarly, Congress called for a one

- time regulatory determination when it stated that "not later than six months after the date of submission of the applicable study" EPA
should "either determin e to promulgate regulations ... or determine that such regulations are unwarranted." 42 U.S.C. § 6921(b)(3)(C).

Second, Congress made it clear it was establishing a one

- time study, report and regulatory determination obligation when it required that the r eport and study be completed by a date certain, i.e., October 21, 1980. 42 U.S.C. § 6982(n). Finally, the Bevill Amendment established a temporary exemption from RCRA Subtitle C regulation for the special wastes, an approach
consistent with a one

- time stud y, report, and regulatory determination. 42 U.S.C. § 6921(b)(3)(A). If Congress had intended to extend the Bevill process thirty years beyond the 1980 date Congress established for completion of the Bevill study and report, Congress would have done so expl icitly. That Congress did not do so, further confirms that it intended that the Bevill process consist of a one

- time report, study, and regulatory determination for CCRs.

Accordingly, with the issuance of the 2000 Regulatory Determination, the Bevill proc ess for fossil fuel combustion wastes, including CCRs, was completed. For all the above reasons, the
Bevill Amendment established a one

- time study, report, and regulatory determination for CCRs. Accordingly, EPA lacks the authority to reverse its 1993 and 2000 Regulatory Determinations. Any attempt by EPA to do so in the final rule would be unlawful

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preamble for a discussion on our decision to re gulate CCR under
subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Deter mination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 5 

### Organization 1 

### : Prairie State Generating Company, LLC (PSGC) 

### Commenter 1 : Keith Bastian Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:381

Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.2 3.1.2 

### Comment Excerpt Text: It recommends that rather than subjecting CCRs to regulatory overkill under Subtitle C or a Subtitle D regulatory program that fails to reflect existing state programs, that EPA request specific legislative authorization to develop federally enforceable regulations.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09426

- 1 

### Organization 1 

### : Wisconsin Public Service 

### Commenter 1 : Connie K. Lawniczak Commenter Type: Electric Utility Company
Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.3 

### Comment Excerpt Text: The Bevill Amendment to RCRA, §3001(b)(3)(A)(i

- iii), is the controlling legal framework by which each of the regulatory options set forth in the current proposal must be evaluated. The Bevill Amendment establishes the statutory proce ss by which Congress directed EPA to make a determination regarding whether CCRs warrant regulation under RCRA’s Subtitle C hazardous waste program. Following years of study, EPA completed the statutorily

- mandated Bevill determination process for CCRs on M ay 22, 2000, concluding, based on two earlier Reports to Congress, that CCRs do not warrant regulation under RCRA’s Subtitle C hazardous waste regulations. See 65 Fed. Reg. 32214 (May 22, 2000). Instead, EPA determined that regulation of
CCRs as non

- hazard ous waste under Subtitle D of RCRA would be fully effective in protecting
human health and the environment. The Subtitle C option would constitute a reversal of EPA’s final 2000 Regulatory Determination that CCRs do not warrant hazardous waste regulation a nd would be in direct contravention of RCRA’s plain language establishing an unambiguous statutory process by which EPA can determine whether and how to regulate CCRs under RCRA. Having completed the Bevill determination process for CCRs in 2000 pursuant t o the statutorily prescribed procedures, EPA is not at liberty to undo that process. Even assuming that the statute did allow EPA to make a new determination more than ten years after completing the Bevill process, EPA would at a minimum be obligated to ad here to the statutory procedures that Congress prescribed for making the original regulatory determination, including providing a Report to Congress setting forth its recommendation. EPA has ignored these procedures in the Subtitle C proposal.

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Be vill Determination. In that, the Agency is deferring a final Bevill Determination, comments made382

on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- R CRA

- 2009

- 0640

- 09631

- 1 

### Organization 1 

### : Porter Wright Morris & Arthur LLP 

### Commenter 1 : Christopher R. Schaff Commenter Type: Law Firm
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: USEPA's proposal to regulate coal combustion residuals appears to be a misguided effort to indirectly discourage the continued generation of electricity in coal

- fired units. USEPA's attempt to dictate energy use policies, for which it has not been given Co ngressional (or other) authorization, interjects unnecessary confusion between the question of the environmental consequences of coal combustion residuals handling, and the broader policy question of the degree to which coal should be utilized as an energy source in this country.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09633

- 10 

### Organization 1 

### : Waterkeeper Alliance 

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



### Comment Excerpt Text: B. EPA Has Been Improperly Influenced By Industry And OMB

According to documents obtained by Public Employees for Environmental Responsibility (PEER) unde r the Freedom of Information Act, EPA has long been clearing its draft reports and
fact

- sheets on the uses and dangers of coal ash with coal industry representatives. [Footnote 45: PEER website, News Releases, Coal Ash Industry Allowed to Edit EPA Reports, January 27, 2010, available at: http://www.peer.org/news/news_id.php?row_id=1297] Beyond merely soliciting comments from industry, EPA has gone so far as to allow industry lobbyists to edit many of these publications. Examples of such influence include: d eletion of a reference to foundry sands as “high risk” from an EPA presentation; [Footnote 46: Email from John Sager, EPA to Elizabeth Olenbush, Foundry Industry Recycling Starts Today (FIRST), October 30, 2003, available at: http://www.peer.org/docs/epa/1 _27_10_EPA_PowerPoint_altered.pdf] an383

agreement to deemphasize cautionary language about FGD gypsum and discussing how to spin 100 percent increases of mercury concentration in FGD material; [Footnote 47: Email from Dave Goss, American Coal Ash Association (ACAA) to John Sager, EPA, June 29, 2007, available at: http://www.peer.org/docs/epa/1_27_10_Cautionary_for_Exclamation_Point.pdf] and a suggestion by an American Coal Ash Association representative that EPA join together with industry to change certain s tate regulations on industrial recycling that may be “hindering progress.” [Footnote 48: Email from Dave Goss, American Coal Ash Association (ACAA) to Anthony Carrell, EPA, June 22, 2007, available at: http://www.peer.org/docs/epa/1_27_10_Industry_edits_on _EPA_Report_to_Congress.pdf] While one might hope, in this new administration, that such cozy relationships between government and industry lobbyists no longer exist, activity surrounding EPA’s proposed rule on coal ash suggests that the influence of speci al interests is not quite a thing of the past.

The proposed rule on coal ash that was originally submitted by EPA to the Office of Management and Budget (OMB) in October 2009 had only one option

-- to label coal ash as a hazardous waste and regulate it und er Subtitle C of RCRA. [Footnote 49: “EPA Backed Off ‘Hazardous’ Label for Coal Ash After White House Review,” by Patrick Reis, New York Times, May 7, 2010, available at: http://www.nytimes.com/gwire/2010/05/07/07greenwire

- epa

- backed

off

- hazardous

- label

- fo rcoal

- ash

- af

- 10431.html] At the time, EPA explained its reasoning in no
uncertain terms:

EPA said then that compliance with the hazardous

- waste regulations would be more expensive but that costs would be outweighed by health and environmental benefits. E PA wrote then that “maintaining a [nonhazardous] approach would not be protective of human health and the environment. [Footnote 50: “EPA Backed Off ‘Hazardous’ Label for Coal Ash After White House Review,” by Patrick Reis, New York Times, May 7, 2010, ava ilable at: http://www.nytimes.com/gwire/2010/05/07/07greenwire

- epa

- backed

- off

- hazardous

- label

forcoal

- ash

- af

- 10431.html] (emphasis added)

While Administrator Jackson submitted the proposed rule with a view to issuing a decision by the end of the year, by December EPA stated that the decision would be delayed. [Footnote 51: “White House, EPA at Odds Over Coal

- Waste Rules,” by Neil King Jr. and Rebecca Smith, Wall Street Journal, page A6, January 9, 2010, available at: http://online.wsj.com/article/SB126300 256672322625.html] What had occurred in the interim were some 20 meetings between coal industry representatives and OMB on the potential impact of the rule, meetings that took place before the rule had even been published and open to comment from the publi c. [Footnote 52: “White House, EPA at Odds Over Coal

- Waste Rules,” by Neil King Jr. and Rebecca Smith, Wall Street Journal, page A6, January 9, 2010, available at: http://online.wsj.com/article/SB126300256672322625.html] Significantly, industry groups

cont inued to hold meetings with OMB through April 2010 (the current proposed rule being published on May 4, 2010), bringing the grand total to at least 33, and all before the formal rulemaking process had begun. [Footnote 53: “Coal Lobbyists Wooed White House Staff to Influence Coal Ash Regulations Long Before Public Hearings,” by Brendan DeMelle, October 27, 2010, available at: http://www.huffingtonpost.com/brendan

- demelle/coal

- lobbyists

- wooed

whit_b_774938.html] Meanwhile, during this same period of time OMB met with environmental groups a mere 12 times. [Footnote 54: “EPA Backed Off ‘Hazardous’ Label for Coal Ash After384

White House Review,” by Patrick Reis, New York Times, May 7, 2010, available at: http://www.nytimes.com/gwire/2010/05/07/07greenwire

- epa

- backe d

- off

- hazardous

- label

forcoal

- ash

- af

- 10431.html] When EPA’s proposed rule on coal ash was finally published it differed drastically from the original in that it now includes an alternative proposal that is much friendlier and less costly to industry. [Foot note 55: EPA Proposed Rule]

It is clear that the alternative proposal to manage coal ash under Subtitle D arose as a result of the coal industry and OMB exerting formidable influence over EPA rulemaking. Barring the possibility that within the space of s ix months coal ash suddenly became non

- toxic, this is, indeed, the only plausible explanation. EPA’s mission is to protect human health and the environment; [Footnote 56: EPA website, Our Mission and What We Do, available at: http://www.epa.gov/aboutepa/wh atwedo.html] it is not to compromise public health in order to make the pill of regulation easier for industry to swallow. Given EPA’s findings on the hazardousness of coal ash, it would be an abdication of this mission and of its responsibility to the pub lic to regulate coal ash under anything other than Subtitle C.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09634

- 9 

### Organization 1 

### : Earth Justice, et. al. (prepared for Sierra Club, Earthjustice, Natural Resources Defense Council) 

### Commenter 1 : Richard C. Fortuna Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.4.7 

### Comment Excerpt Text: E. “Stigma” Under RCRA Is Illegal

In 1986 EPA issued a final decision not to list recycled oil as hazardous waste because the stigmatic effect of such a listing would discourage recycling.[Footnote 56: 51 FR 41900 (November 18, 1986), Used Oil Listing; Final Rule.] Despite it s own report indicating that certain types of used oil should be listed as hazardous waste because of various toxic constituents, EPA failed to act on its own determinations. As a result in the 1984 HSWA, Congress adopted Sections 241

- 242 requiring EPA to decide within a specified time whether to
list used oils as hazardous.

EPA’s decision not to list used oil because of “stigma” was challenged by The Hazardous Waste Treatment Council (HWTC),[Footnote 57: I was the Executive Director of the HWTC at the
ti me.] petroleum refining organizations and the Natural Resources Defense Council. In its opinion, the Court ruled unanimously, stating tersely that:

The EPA erroneously based its decision not to list recycled oils as hazardous waste on the stigmatic effec ts of such a listing, a factor not permitted by the statute.[Footnote 58: 861 F.2d385

270 (D.C. Cir. 1988), Hazardous Waste Treatment Council v. EPA (HWTC I). Used Oil Recycling Litigation.]

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

- 09712

- 11 

### Organization 1 

### : Basin Electric Power Cooperative (BEPC) 

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



### Comment Excerpt Text: EPA's proposed Subtitle C Option is arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with the law; therefore, a reviewing court is likely to find invalid any EPA Rule applying Subtitle C regulation to Bevill Amendment wastes The Administrative Procedure Act empowers courts to review "agency action,findings, and conclusions" if they are "arbitrary and capricious, an abuse of discrection, or otherwise not in
accordance with law."28 Before taking an agency action, such as rule making, the agency is required to "examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choices made."29 The court must
the n review that explanation and evaluate "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment."30

In this case, EPA's action, in proposing a final rule that is contrary to its earli er final determination regarding the Bevill Wastes in its Report to Congress, is, first of all,"not in accordance with law." The Bevill Amendment directed the EPA to complete a study considering all the listed factors equally and then make a single determi nation whether the CCRs should be regulated under Subtitle C. Once EPA made thisdetermination, it had no authority to institute a notice of proposed rulemaking, and areviewing court is likely to rule against the EPA.

Because the Bevill Amendment was spec ific and limited in what it authorized the EPA to do and regarding Congress' reasons for doing it the way it did, the EPA'sproposed rule is not in
accordance with the law and is an abuse of the EPA's discretion.

Additionally, EPA's proposed rule is arbit rary and capricious because EPA has failed entirely to consider important aspects of the problem. EPA is relying on factors in a way in which Congress has not intended it to consider them, and the EPA has offered an explanation for its decision that

runs c ounter to the evidence before the agency . Forexample, EPA's proposed rule 1) is inconsistent with the Bevill Amendment's directive that any final determination not impair CCR beneficial use, 2) is at odds with Congress's [footnotes: 28 5 U.S.C. 706(2)(A). 29 Motor Vehicle Mfrs. Assn ofthe U.S. v. State Farm Mut Auto. Ins. Co., 463 U.S. 29, 43,103 S.Ct.2856, 77 L.Ed.2d 443 (1983). 30 Id.] express directive that any regulatory program for CCRs not386

discourage the use of coal by imposing undue regulatory costs on the management of CCRs, 3) disregards the nearly unanimous views of the federal and state agencies, with which the Bevill Amendment directs EPA to consult in reaching a final regulatory determination, that Subtitle C regulation is not warranted for CCR s, and 4) is inconsistent with EPA's own findings that state programs can properly address CCR disposal practices under RCRA Subtitle D, and inappropriately includes potential damage cases in its evaluation of the appropriate regulatory option for CCRs whe n the Bevill Amendment directs the Agency to evaluate only those instances where such danger has been proved when considering the "documented cases" of danger from the managementof CCRs.

Further, EPA's prior determination "recognized that coal combustion wastes rarely exceed the RCRA characteristics for hazardous waste, and therefore, that most coal combustion wastes would not be subject to Subtitle C controls unless they were listed as hazardous wastes.,,31 In this rulemaking, EPA has indicated that "[t] hisdecision is driven in part by the failure of a surface impoundment retaining wall in Kingston, TN in December 2009."32 The failure of the surface impoundment is a dam safety issue, not a hazardous waste issue, so it is arbitrary and capricious to warran t reclassification of CCRs as a hazardous waste based on reasons and justificationsrelated to the failure of a surface impoundment.

Because the EPA has relied on factors which Congress has not intended it to consider, entirely failed to consider importan t aspects of the problem, and offered explanations for its decision that run counter to the evidence before the EPA, an EPA final rule under which Bevill Wastes are regulated under Subtitle C would be arbitraryand capricious.33 3158 Fed. Reg. at 42477.32 7 5 Fed. Reg. at 35132.33 Motor Vehicle Mfrs. Ass'n ofthe U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S . 29, 43 (1983).

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09713

- 8 

### Organization 1 

### : Indianapolis Power & Light Company (IPL) 

### Commenter 1 : Dana G. Meier Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The Bevill Amendment directs EPAto examine the "[a]ction taken by other governmental agencies or regulatory programs based on the health or environmental hazard posed by the waste or waste constituents." 40 C.F.R. 261.11(a)(3)(x). Here, EPA has failed to give any meaningful consideration to the actions taken by other governmental agencies or regul atory programs for regulating CCRs, including most notably state regulatory programs. Indeed, EPA does not reference a single state regulatory program already in place for CCRs. EPA's failure to fully recognize the federal or state regulatory controls that are already in place for CCRs renders387

EPA's proposed listing for CCRs defective. EPA itself documented in the final 2000 Regulatory Determination the growing effectiveness of state regulatory programs for CCRs, concluding that "with the exception of relat ively 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.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to U nit IV of today’s preamble for a discussion on our decision to regulate CCR under
subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09728

- 12 

### 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: b. The EPA has not provided Congress with a determination report prior to rulemaking which
outlines the scienc e in regulating CCR as hazardous. A Bevill reversal would be improper and exceed the EPA's statutory authority.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preamble for a discussion on o ur decision to regulate CCR under
subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09728

- 14 

### 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: d. The EPA has failed to convene required meetings and hearings with affected parties as required by law.

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Be vill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.388



### Comment Number: EPA

- HQ

- R CRA

- 2009

- 0640

- 09884

- 9 

### Organization 1 

### : Luminant 

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



### Comment Excerpt Text:

III. EPA Should Follow its Previous Determinations and is Statutorily Required to Consider the Opinions of State and Federal Agencies

On two separate occasions, most recently in 2000, EPA made a final regulatory determination concluding that Subtitle C of RCRA is not the appropriat e regulatory regime for regulating CCR and that regulation as non

- hazardous waste by the states is the appropriate option for ensuring the safe management of these materials whi Ie preserving reuse. Virtually every federal and state agency that has express ed its views is opposed to the Subtitle C option. This is important since the Bevill Amendment requires that the views of these agencies be considered by EPA prior to the issuance of any final regulatory determination for CCR. EPA's disregard of this input is
inconsistent with the statute

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on th e Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemakin g at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09885

- 10 

### Organization 1 

### : Progress Energy, Inc. 

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



### Comment Excerpt Text: The Subtitle C option is inconsistent with the views of other federal and state agencies that EPA was to consult with in reaching a Final regulatory determination

EPA’s proposed Subtitle C option is opposed by virtual ly every federal and state agency that has weighed in on this rulemaking. This broad opposition to the Subtitle C option is significant because the Bevill amendment and its legislative history make clear that the informed views of these agencies were to be considered by EPA in the issuance of any final regulatory389

determination for CCRs. Given this across

- the

- board opposition to the Subtitle C option by the groups Congress directed EPA to consult with as part of the decision

- making process for CCRs,
selectio n of the Subtitle C option would be inconsistent with the statute.

The statute specifically directs that EPA, in preparing its study on CCRs, “shall, as [the Administrator] deems appropriate, review studies and other actions of other Federal and State

age ncies concerning such material and invite participation by other concerned parties, including industry and other Federal and State agencies, with a view toward avoiding duplication of effort.” Representative Bevill elaborated on this collaborative process by emphasizing that “EPA’s studies should not proceed in a vacuum,” but rather that EPA was to reach out to those with expertise in the field.

The Association of State and Territorial Solid Waste Management Officials (“ASTSWMO”) expressly rejected EPA’s p roposed regulation of CCRs under Subtitle C: To artificially classify [coal combustion byproducts (CCB)] as hazardous will needlessly limit the management options for both the CCBs and other wastes legitimately classified as hazardous which will be competi ng with CCBs for limited hazardous waste disposal capacity, while not producing any great degree of environmental protection. Transportation, manifesting and licensing requirements for CCBs as a listed hazardous waste are excessively burdensome without suf ficient evidence of a benefit. It would be more appropriate to regulate and manage CCBs using design and operation standards specified for Subtitle D programs except in cases where a particular source material is deemed hazardous upon testing for character istics.

The most compelling reason not to impose Subtitle C regulations is that the beneficial use of CCB has been very successful. The “hazardous” label of Subtitle RCRA Subtitle C has the potential to put an end to many beneficial uses for CCB. In short , the statute and its legislative history make clear that that EPA was to “seek the assistance and cooperation of those most expert in this field” in making a final regulatory determination. EPA’s selection of the Subtitle C option would be directly contra ry to the unanimous opinion of these informed parties and to Congress’ directive that EPA produce a “collaborative, informed” regulatory determination for
CCRs

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Un it IV of today’s preamble for a discussion on our decision to regulate CCR under
subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill

Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09885

- 3 

### Organization 1 

### : Progress Energy, Inc. 

### Commenter 1 : Caroline Choi Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:390



### Comment Excerpt Text: EPA may not reverse its final regulatory determinati ons that CCRs do not warrant regulation
under RCRA Subtitle C

The fundamental flaw in the proposed Subtitle C option is that it is premised on the notion that EPA is at liberty to reverse its final Regulatory Determinations that CCRs do not warrant regula tion under Subtitle C of RCRA. Because the statute does not authorize EPA to reverse these final Regulatory Determinations, EPA may not adopt the Subtitle C hazardous waste option for CCRs. Even assuming for purposes of argument that the statute did author ize such reversal, EPA’s proposal to regulate CCRs under Subtitle C does not comply with the Bevill amendment’s statutorily

- prescribed decisionmaking process. While Administration and EPA policies may have changed over the last two years, the law governing the decision

- making process by which EPA may choose to regulate CCRs under RCRA has not. Congress established a detailed process by which EPA could determine whether and how to regulate CCRs under RCRA Subtitle C. EPA completed the Bevill process pursuant to a judicially

- imposed deadline and determined, in accordance with the congressionally

- mandated, decision

- making process, that CCRs do not warrant regulation under Subtitle C and but do warrant regulation under Subtitle D. The statutory
decision

- making p rocess is complete, and RCRA does not authorize EPA to reverse its final CCR Regulatory Determinations in a manner of its own choosing.

The statute also does not authorize EPA to redo or reverse a final regulatory determination that the Agency has already properly reached pursuant to the amendment’s statutorily prescribed procedures and deadlines, or to undertake another round of Bevill decision

- making for CCRs. If it did, the statutory process and its associated deadlines for reaching a final Regulatory
D etermination would have no meaning, and EPA could continually change its mind in an abbreviated fashion, as illustrated by the proposed Subtitle C option. If Congress had wanted to give EPA this authority, it would have done so explicitly. Its absence mean s that EPA does not have the authority to undertake, through a process and timing of its own choosing, a second regulatory determination.

The statute contemplates only a one

- time decision, directing EPA to determine, after the statutorily

- required reports to Congress on CCRs, whether Subtitle C regulation for CCRs is warranted. EPA completed this statutorily

- prescribed process for CCRs over ten years ago, concluding for a multitude of reasons that CCRs do not warrant regulation under RCRA Subtitle
C. The s tatute simply does not empower EPA to revisit its final decision and render a new
determination

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Det ermination is to be made are outside the scope of this rulemaking at this time.391



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09885

- 4 

### Organization 1 

### : Progress Energy, Inc. 

### Commenter 1 : Caroline Choi Commenter Type: Electric Utility Company
Classification: Substa ntive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.5 

### Comment Excerpt Text: EPA has failed to adhere to the Bevill amendment’s prescribed process

Even assuming that RCRA could be read as authorizing EPA to reverse its final Regulatory Determination for CCRs, the agency would have to adhere to the statutorily prescribed procedures that Congress demanded EPA follow in determining whether and how to regulate CCRs. EPA has strayed beyond the plain language of the statut e by proposing to reverse its final Regulatory Determinations for CCRs without following the statutorily

- required process it followed for issuing those determinations in the first instance. The agency’s proposed Subtitle C option does not comport with the process that Congress demanded EPA adhere to in determining whether and how to regulate CCRs under RCRA Subtitle C. At a minimum, EPA must conduct thorough studies demonstrating a clear need for regulation; provide Congress a report detailing its findings on those studies; conduct public hearings and solicit comments on that report to Congress; issue a final determination based on the report to Congress and provide an opportunity for public comment on that report regarding whether and how to regulate CCRs u nder RCRA.

Prior to making any final regulatory determination for CCRs, the statute directs EPA to fully inform Congress of the Agency’s initial recommendation. This is not a mere procedural formality. As Representative Bevill emphasized when introducing his amendment, it was especially critical that EPA not make the final regulatory determination in isolation, but that Congress and relevant federal agencies be involved in the decision

- making process. The failure of EPA to prepare a report to Congress outl ining fully and comprehensively the Agency’s recommendation to regulate CCRs under RCRA’s hazardous waste program is at odds with the plain language of the statute. This failure deprives Congress of its statutorily

- prescribed right to be fully informed of any such recommendation so that it can evaluate and respond, as appropriate, to the Agency’s proposed course of action before EPA makes a final regulatory determination and develops federal regulations

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.392



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09885

- 5 

### Organization 1 

### : Progress Energy, Inc. 

### Commenter 1 : Caroline Choi Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.4.2 10.4.5 

### Comment Excerpt Text: The proposed Subtitle C option is inconsistent with the Bevill amendment

Even assuming, for purposes of argument, that EPA was authorized to revisit its final Bevill Regulatory Determination for CCRs and that it followed the statutorily

- prescribed procedures for issuing a new regulatory determination, the Subtitle C option would nonetheless be unlawful
because it:

1. is inconsistent with the Bevill amendment’s directive that any final determination not impair CCR beneficial use;

2. is at odds with Congress’ express directive that any regulatory program for CCRs not discourage the use of coal by imposing undue regulatory costs on the management of CCRs;

3. disregards the nearly unanimous views of the federal and state agencies

- whom the Bevill
amendment directs EPA to consul t with in reaching a final regulatory determination

- that Subtitle C regulation is not warranted for CCRs; and

4. is inconsistent with EPA’s own findings that state programs can properly address CCR disposal practices under RCRA Subtitle D.

In addition, the Subtitle C option is arbitrary and capricious because EPA has not provided a reasoned explanation for reversing its previous conclusion that application of the inflexible Subtitle C regulatory program to CCRs will result in excessive and unnecessary r egulation. EPA’s theory that regulating CCRs under RCRA’s Subtitle C will actually increase CCR beneficial use is one of the most incorrect aspects of the CCR proposal. This position ignores actual marketplace evidence, which already is showing declines in CCR beneficial use just from the threat of Subtitle C regulation; EPA’s own prior positions; the nearly unanimous position of other federal agencies and state environmental protection agencies; the views of standards

setting organizations that have no eco nomic, political or other vested interests in the outcome of this rulemaking; the long

- standing view of Congress; and the position of electric utilities, the entities that produce the CCRs for the beneficial use market.

EPA identifies the array of valid c oncerns raised by industry, utilities, states, standard setting

organizations and others that Subtitle C regulation will effectively cripple the CCR beneficial use market, but offers remarkably little, if any, response to these points. In fact, EPA express ly acknowledges that, if it pursues the Subtitle C option, some states, such as Florida, “would likely prohibit the beneficial use of CCRs.” Instead of providing substantive responses to these393

concerns, EPA persists in its position that it understands the economic drivers in the CCR beneficial use market better than those actually engaged in the business. EPA argues that driving up the costs of CCR disposal as high as possible (as would happen under the Subtitle C option)
would force more CCRs into the bene ficial use market. EPA’s theory, however, is based on flawed examples, and ignores the first

- hand knowledge of those involved in the CCR beneficial use market who have consistently provided EPA with information and data demonstrating that any form of Subti tle C regulation will cripple the beneficial use of CCRs. EPA’s theory also fails to consider whether the marketplace can absorb the vastly increased volume of CCRs that it speculates will be beneficially used under the Subtitle C option. Both the CCR prod ucers and the CCR beneficial use market have explained that this is not the case.

EPA also argues that any stigma resulting from Subtitle C regulation will be “significantly reduced by listing CCRs as a ‘special waste,’” attempting to deflect attention fr om the reality that these materials would be subject to hazardous waste regulation from their point of generation until their ultimate disposal. EPA’s “special waste” label will do nothing to reduce the potential legal liabilities of using a material in a commercial or residential setting that is a listed waste under Subtitle C and subject to hazardous waste regulation when disposed of. RCRA makes clear that only materials that are “ hazardous waste listed or identified ” under Subtitle C are subject to
the s tatute’s hazardous waste controls, including, among other things, its permitting, substantive design and operating standards, and corrective action requirements. In evaluating the potential impacts of Subtitle C regulation on CCR beneficial use, it is impo rtant to note that the sponsors of the Bevill amendment cautioned EPA against regulation of CCRs under Subtitle C for precisely the same reasons being offered today by opponents of the Subtitle C option: subjecting CCRs to the stringent Subtitle C program is certain to have adverse impacts on the use of these materials. Representative Bevill was clear that one of the primary purposes of his amendment was to reinforce the “national commitment to encourage reuse of such materials as fly ash.”

Considering th e above in addition to the record evidence already assembled in this rulemaking proceeding, it is clear that regulating CCRs under any Subtitle C hazardous waste regime, even with the “special waste” label, will have a significant adverse impact on CCR ben eficial use. EPA itself concluded in its 2000 Regulatory Determination that the stigma from regulating CCRs under RCRA’s hazardous waste program could harm CCR beneficial use. Importantly, the Subtitle C option considered and rejected in 2000 was a “contin gent Subtitle C” option, which meant that CCRs managed in accordance with Subtitle D

- like standards would not be classified as a hazardous waste; only CCRs not properly managed under the Subtitle D standards would have been regulated as listed hazardous wa stes. EPA recognized that, even under that approach, the mere possibility of subjecting CCRs to hazardous waste regulation would have an adverse stigmatizing effect on CCR beneficial use.

The Association of State and Territorial Solid Waste Management Off icials (“ASTSWMO”) has warned EPA repeatedly since initiation of this rulemaking that “[t]he most compelling reason not to impose Subtitle C regulations [on CCRs] is that the beneficial use of CCB has been very successful. The ‘hazardous’ label of Subtitle C would be detrimental to State CCB beneficial use programs.” Just last fall, after polling every state in the nation on the potential impacts on state programs of regulating CCRs under Subtitle C, ASTSWMO wrote EPA to caution that “[r]egulation under RCR A Subtitle C has the potential to put an end to many beneficial uses for394

[coal combustion waste] CCW. In most States, a primary requirement for a beneficial use
determination is that the waste not be hazardous. Labeling CCW a hazardous waste will have a
de trimental [impact] on its beneficial use.”

Real

- world evidence of the adverse impacts on CCR beneficial use stemming from just the
prospect of Subtitle C regulation is being reported by electric utilities. Just as CCR marketers
and end

- users are already f eeling the adverse impacts of this proposal, so too have utilities become painfully aware of the stigma associated with the proposal

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made

on the statut ory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09885

- 8 

### Organization 1 

### : Progress Energy, Inc. 

### Commenter 1 : Caroline Choi Commenter Type: Electric Ut ility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.4 

### Comment Excerpt Text: EPA does not justify a change in position that would use Subtitle C.

In addition to the above, EPA’s selection of the Subtitle C option would be arbitrary and capricious because the agency has provided no explanation as to why its earlier conclusions that the Subtitle C option would result in excessive and inappropriate regulatory controls for CCRs

are no longer true. The EPA’s 1993 final Regulatory Determination concluded that the four large
volume CCRs

– fly ash, bottom ash, boiler slag, and flue gas desulfurization waste

– do not warrant hazardous waste regulation. EPA emphasized that the inflexible Sub title C hazardous waste framework was inappropriate for CCRs, explaining “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 con trols.”

This was an important conclusion. As the agency explained in outlining the factors that it would evaluate in making a final regulatory determination, “the special status of the [CCR] waste requires that the Agency consider the impacts to the indus try that regulation under Subtitle C would create in making a decision to regulate the waste as hazardous.” EPA found that the rigid nature of the Subtitle C regulatory system would result in excess costs and unnecessary regulation as applied to CCR manage ment units. After acknowledging that CCRs rarely exhibit a hazardous waste characteristic and thus would not be subject to hazardous waste controls unless they were listed as a hazardous waste, EPA emphasized that the listing approach would be inappropriat e and excessive.395

Having previously concluded that the Subtitle C approach would be inappropriate because, among other reasons, it would result in the over

- regulation of CCRs in contravention of the Bevill amendment, EPA provides no explanation in the prop osal as to what, if anything, has changed to suggest that the imposition of these very same Subtitle C controls will no longer result in inappropriate and unnecessary costs on the utility industry. As EPA itself noted earlier, “the special status of the [C CR] waste requires that the agency consider the impacts to the industry that regulation under Subtitle C would create in making a decision to regulate the waste as hazardous.” There is no reasoned explanation for EPA’s about

- face on this issue.

The excess ive costs and unduly burdensome regulation of CCRs under the proposed Subtitle C option are at least as great today as they were ten years ago when EPA rejected application of the Subtitle C hazardous waste rules for CCRs. As EPA has failed to explain why regulation of CCRs under Subtitle C is now appropriate, having expressly found earlier that such regulation would be both “inappropriate” and in “excess of requirements” for CCRs, any final Subtitle C regulation would be arbitrary and capricious

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10166

- 6 

### Organization 1 

### : Consumers Energy Company 

### Commenter 1 : Gary A. Dawson Commenter Type: Electric Utility Company
Classification: Substantive
Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Further, the characteristics of CCRs have not changed since the final regulatory determinations in 1993 and 2000, and there is no regulatory mechanism under the Bevill Amendment that allows for the reversal of these final determinations in the CCR proposed rules. This issue is discussed
in detail in the USWAG comments .

Consumers Energy concludes that EPA's proposal to regulate CCRs under Subtitle C of RCRA is
inconsistent with the EPA's past final determinations and with the Bevill Amendment to RCRA and is arbitrary and capricious.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preamble for a discussion on our de cision to regulate CCR under
subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 10 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG) et al.396



### Commenter 1 : James R. Roewer Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Even assuming, for purposes of argument, that EPA was authorized to revisit its final Bevill Regulatory Determination for CCRs and that it followed the appropriate stat utory procedures for issuing a new regulatory determination, the Subtitle C option would nonetheless be unlawful because it (1) is inconsistent with the Bevill Amendment‘s directive that any final determination not impair CCR beneficial use, (2) conflicts with Congress‘ directive that any regulatory program for CCRs not discourage the use of coal by imposing undue regulatory costs on the management of CCRs, and (3) disregards the nearly unanimous views of the federal and state agencies (with which the Bevil l Amendment directs EPA to consult in reaching a final regulatory determination) that Subtitle C regulation is not warranted for CCRs In addition, the Subtitle C option is arbitrary and capricious because EPA has not provided a reasoned explanation for

rev ersing its previous conclusion that application of the inflexible Subtitle C regulatory program to CCRs will result in excessive and unnecessary regulation. These issues are discussed in detail
below.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 40 

### 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:
Other Sections: 2.1.1 

### Comment Excerpt Text: A. EPA’s Position On Passive Migration Is Contradicto ry To Federal Case Law

EPA‘s current position that RCRA‘s definition of “disposal” applies to closed and/or inactive units has been flatly rejected by the courts. Five United States Courts of Appeals have looked directly at the question of whether the def inition of “disposal” includes the type of passive migration that EPA is proposing to force into the scope of these regulations. All five courts have soundly rejected this interpretation. [Footnote 28: Notably, the only Administrative Law Judge (“ALJ”) to have considered this issue also concluded that the term “disposal” does not include the passive migration of hazardous waste. In re Globe Aero Ltd., Inc. and the City of Lakeland, 1996 EPA ALJ Lexis 47 (June 4, 1996). The ALJ held that “[d]isposal is an ac t rather than a state of continued noncompliance. The fact that the waste or waste constituents may migrate397

does not provide a basis for finding a continued disposal violation.” Id. (internal citations omitted).”] Although these cases have considered the d efinition of disposal in the context of CERCLA, 42 U.S.C. § 9601 et seq., “the distinction is of no moment” as CERCLA specifically incorporates by reference RCRA‘s statutory definition of “disposal.” Delaney v. Town of Carmel, 55 F. Supp. 2d 237, 256 (S.D. N.Y. 1999); see also Interfaith Cmty. Org. v. Honey

- Well Intl Inc., 263 F. Supp. 2d 796, 846 n.10 (D.N.J. 2003) (finding that although the Third Circuit‘s opinion in United States v. CMDG Realty Co., 96 F.3d 706 (3rd Cir. 1996), “addressed CERCLA liability , the Court was interpreting the RCRA definition of ?disposal‘“ and the Third Circuit‘s holding was therefore controlling in an assessment of RCRA liability as well). [Footnote 29: See CERCLA § 101(29), 42 U.S.C. § 9601(29) (“The term[] ?disposal‘ shall ha ve the same meaning provided in section 1004 of the Solid Waste Disposal Act . . . .)”]

Under RCRA, “disposal” means:

[t]he discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.

RCRA § 1004(3), 42 U.S.C. § 6903(3). Most recently, the Court of App eals for the Ninth Circuit joined four other circuit courts in rejecting the notion that the passive migration of contaminants through the soil falls within this statutory definition of “disposal.” See Carson Harbor Vill. v. Unocal Corp., 270 F.3d 863 (9th Cir. 2001). Adhering to the Supreme Court‘s admonition that “[i]n examining the statutory language, we . . . adhere to the ‘Plain Meaning Rule,‘“ the court reasoned that “[i]f we try to characterize this passive soil migration in plain English, a number o f words come to mind, including gradual ‘spreading,‘ ‘migration,‘ ‘seeping,‘ ‘oozing,‘ and possibly ‘leaching.‘ But certainly none of those words fits within the plain and common meaning of ‘discharge, ... injection, dumping, ... or placing.‘“ Id. at 879 (elli pses in original). The Ninth Circuit‘s holding in Carson Harbor Vill.. therefore is directly at odds with EPA‘s proposed interpretation that the passive migration of constituents from previously closed CCR surface impoundments constitutes “disposal” under RCRA. See also Delaney, 55 F. Supp. 2d at 256 (“the alleged passive migration of hazardous waste, through the groundwater or otherwise[,] ... does not constitute ?disposal‘ of hazardous waste as defined in RCRA”).

In addition, the Sixth Circuit has held tha t “because ?disposal‘ is defined primarily in terms of active words such as injection, deposit, and placing, the potentially passive words ?spilling‘ and ?leaking‘ should be interpreted actively[.]” United States v. 150 Acres of Land, 204 F.3d 698, 706 (20 00). As there would be no human activity involved in the movement of water through closed and/or inactive CCR impoundments, EPA‘s proposed expansion of the definition of “disposal” to include passive migration directly contradicts the Sixth Circuit‘s holdi ng.

The Second Circuit has similarly agreed that “[n]one of these terms [i.e., discharge, deposit, injection, dumping, spilling, leaking, or placing] is commonly used to refer to the gradual spreading of hazardous chemicals already in the ground.” ABB Ind ustrial Systems v. Prime Technology, 120 F.3d 351, 358 (2d Cir. 1997). Therefore, this Circuit‘s holding would also not permit EPA‘s proposed expansion of “disposal” to include the gradual spreading of chemicals398

already in the ground.

In addition, the Thi rd Circuit has held that, based on the plain meaning of the words used to define disposal, “the passive migration of contamination dumped in the land prior to ownership does not constitute disposal.” United States v. CDMG, 96 F.3d 706, 711 (3rd Cir. 1996). The Third Circuit noted that its conclusion was supported by the fact that the term “leaching” is not included in the statutory definition of “disposal.” Id. at 715. The Third Circuit‘s holding in CDMG rejects EPA‘s efforts to force the “passive migration ” of wastes into the definition of “disposal.”

The Fifth Circuit has also agreed that where the plaintiff “failed to show that any hazardous waste ?leaked‘ or ?spilled‘ during [the defendant‘s] ownership of the property[,] a disposal did not occur during [the defendant‘s] ownership.” Joslyn Mfg. Co. v. Koppers Co., 40 F.3d 750, 762 (5th Cir. 1994). This position is consistent with the holdings in the Second, Third, Sixth and Ninth Circuits, and similarly demonstrates that EPA‘s proposed passive disposal th eory violates RCRA‘s clear statutory language.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to the definitions section of the Response to Comment document for a discussion on the definition of “disposal.”



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 7 

### 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 Assig ned/Due:



### Comment Excerpt Text: The fundamental flaw in the proposed Subtitle C option is that it is premised on the notion that EPA is at liberty to reverse its final Regulatory Determinations that CCRs do not warrant regulation under Subtitle C of RCRA. Because the statute does not authorize EPA to reverse these final Regulatory Determinations, EPA may not adopt the Subtitle C hazardous waste option for CCRs. Even assuming for purposes of argument that the statute did authorize such reversal, EPA‘s propo sal to regulate CCRs under Subtitle C does not comport with the Bevill Amendment‘s statutorily

- prescribed decision making process.

While EPA‘s current policy goals may favor the Subtitle C option over the Subtitle D option, policies cannot trump the law. The United States Court of Appeals for the District of Columbia Circuit cautioned against precisely such precipitous agency action by new administrations when, in the pursuit of political and policy agendas, agencies stray beyond the plain language of thei r authorizing statutes:399

We recognize that a new administration may try to effectuate new philosophies that have been implicitly endorsed by the democratic process. Nonetheless, it is axiomatic that the leaders of every administration are required to adher e to the dictates of statutes that are also products of
democratic decision

- making. Unless officials of the Executive Branch can convince Congress to change the statutes they find objectionable, their duty is to implement the statutory mandates in a
ration al manner.

Int'l Ladies’ Garment Workers’ Union v. Donovan, 722 F.2d 795, 827 (D.C. Cir 1983). The D.C. Circuit‘s caution rings true in this case. [Footnote 9: The same caution was echoed by in a recent speech before the Environmental Law Institute by Jud ge Tatel of the D.C. Circuit:

[I]t‘s at times like these, when a new administration is determined to change environmental policy, that our commitment to the fundamental principles of administrative law is really tested... In both Republican and Democratic a dministrations, I have too often seen agencies failing to display the kind of careful and lawyerly attention one would expect from those required to obey federal statutes and to follow federal statutes and to follow principles of
administrative law. In suc h cases, it looks to all the world that agencies choose their policy first and then later seek to defend its legality. This gets it backwards. . . . It‘s backwards because whether or not agencies value neutral principles of administrative law, courts do, a nd they will strike down agency action that violates those principles

– whatever the president‘s party, however popular the administration, and no matter how advisable the initiative. “The Administrative Process and the Rule of Environmental Law"; the Hono rable David S. Tatel, at an Environmental Law Institute symposium entitled “An Agenda for the New EPA” (Oct. 6, 2009), (emphasis added). ] While Administration and EPA policies may have changed over the last two years, the law governing the decision making process by which EPA may choose to regulate CCRs under RCRA has not

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 8 

### 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:
Other Sections: 2.1.3 

### Comment Excerpt Text: A. EPA Completed The Bevill Regulatory Process For CCRs In 2000 And The Statute Does Not
Authorize EPA To Reverse That Decision

EPA has completed the Bevill process pursuant to a judicially

- imposed deadline and determined, in accordance with the congressionally

- mandated decision

- making process, that CCRs do not400

warrant regulation under Subtitle C. The statutory decision making process is complete and
RCRA does not authorize EPA to decide to take a second bite at the apple and reverse its final CCR Regulatory Determinations in a manner of its own choosing.

Congress established a detailed process by which EPA could determine whether and how to regulate CCRs under RCRA Subtitle C. E PA has completed that statutory process, determining that CCRs do not warrant regulation under RCRA Subtitle C, and concluding instead that CCRs warrant regulation under RCRA‘s Subtitle D nonhazardous waste program. The plain language
of the statute does n ot contemplate, let alone authorize, EPA undertaking another round of the
Bevill decision

- making for CCRs. If it did, the statutory process and its associated deadlines for reaching a final regulatory determination would have no meaning and EPA could conti nually change its mind in an abbreviated fashion, as illustrated by the proposed Subtitle C option.

EPA readily concedes that the Bevill Amendment does not include a process for Agency reversal of the CCR final Regulatory Determinations. In response to an inquiry from Representative Markey following the Kingston ash release regarding whether and how EPA could reverse its final CCR Regulatory Determinations for CCRs, EPA‘s then

- Acting Associate Administrator readily acknowledged that “RCRA does not specifi cally spell out the process by which we [would] revise the Regulatory Determination.” See Letter from Joyce K. Frank, EPA Acting Associate Administrator, to Rep. Markey, Chair, House Committee on Energy and Commerce, at 3 (Jan. 30, 2009) (“Frank Letter”) ( attached as Appendix 4). As the D.C. Circuit has held, Congress‘ failure to grant an agency a given power is not an ambiguity as to whether that power has, in fact, been granted. On the contrary, and as this Court persistently has recognized, a statutory s ilence on the granting of a power is a denial of that power to the agency. American Bus. Ass’n v. Slater, 231 F.3d 1, 8 (D.C. Cir. 2000) (Sentelle, J., concurring) (emphasis added). Here, even EPA acknowledges that the statute does not speak to whether and how EPA can revise its final CCR Regulatory Determinations. The Agency nonetheless assumes that it possesses such power. It does not.

It is a fundamental principle of administrative law that an agency‘s authority to act must come directly from Congress. Absent such authority, an agency may not act. See U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 566 (D.C. Cir. 2004) ([S]tatutory silence simply leaves th[e] lack of authority untouched. In other words, the failure of Congress to use Thou Shalt Not language
doe sn‘t create a statutory ambiguity of the sort that triggers Chevron deference.); Ethyl Corp. v. EPA, 51 F.3d 1053, 1060 (D.C. Cir. 1995) (“We refuse ... to presume a delegation of power merely because Congress has not expressly withheld such power.”); Ry. Labor Executives’ Ass’n v. Nat’l Mediation Bd., 29 F.3d 655, 671 (D.C. Cir. 1994) (en banc) (“Were courts to presume a delegation of power absent an express withholding of such power, agencies would enjoy virtually limitless hegemony, a result plainly out of keeping with Chevron and quite likely with the Constitution as well.”) (emphasis in original). [Footnote 10: See also Adams Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990) (“A 'gap' is not created in a statutory scheme merely because a
statute does not r estate the truism that States may not preempt federal law.”); Aid Ass’n for Lutherans v. USPS, 321 F.3d 1166, 1174

- 75 (D.C. Cir. 2003) (“[T]he Postal Service‘s position seems to be that the disputed regulations are permissible because the statute does not expressly foreclose the construction advanced by the agency. We reject this position as entirely untenable under well established case law.”).]401

The Bevill Amendment is completely silent on EPA‘s authority to redo or reverse a final regulatory determinatio n that the Agency has already properly reached pursuant to the Amendment‘s statutorily prescribed procedures and deadlines. [Footnote 11: Though, as noted above, EPA missed the statutory deadlines set forth in the statute for reaching a final regulatory
de termination for CCRs; a citizen suit over this missed statutory deadline resulted in EPA being subject to court

- ordered deadlines for issuing both the 1993 and 2000 CCR final Regulatory Determinations. ] If Congress had wanted to give EPA this authority, i t would have done so explicitly.[Footnote 12: Indeed, when Congress wishes to give an agency the authority to revisit prior statutory compelled actions, it knows how to do so. See e.g., Clean Air Act § 112(c)(1), 42 U.S.C. § 7412(c)(1) (1990) (“CAA”) (dire cting EPA to re

- evaluate no less often then every eight years and revise, as appropriate, based on public comment or new information, the list of categories of major sources and area sources listed by EPA under CAA Section 112(c)(3)); see also CAA § 109(d) , 42 U.S.C. § 7409(d) (directing EPA to review at five year intervals the criteria for pollutants published under CAA Section 7408 and the national ambient air quality standards promulgated under Section 7409 and make such revisions and promulgate new

stan dards as may be appropriate). As explained above, Congress has not provided EPA with similar authority to reevaluate and revise its final CCR Regulatory Determinations.] As the above federal decisions make clear, such silence means that EPA does not have t he authority to undertake, through a process and timing of its own choosing, a second regulatory determination.

The plain language of the statute provides for only a one

- time decision, directing EPA to determine, not later than six months after the statut orily

- required report to Congress on CCRs, whether Subtitle C regulation for CCRs is warranted. See RCRA § 3001(b)(3)(C). That determination, which was to be based on information developed or accumulated pursuant to such study, public hearings, and comment , was to be published in the Federal Register and accompanied by an explanation and justification of the reasons for it. Id. EPA completed this statutory process for CCRs over ten years ago, concluding for a multitude of reasons that CCRs
do not warrant re gulation under RCRA Subtitle C. The statute simply does not empower EPA to
revisit its final decision and render a new determination.

If EPA wishes once more to undertake the statutorily

- prescribed process for reaching a final regulatory determination for CCRs, it must obtain this authority from Congress. If Congress were to grant EPA such authority, it would be reasonable to expect that Congress would establish new statutory deadlines and perhaps new and different statutory study factors for EPA to
evalua te in undertaking an additional regulatory determination for CCRs. Absent such authority from Congress, the Agency is not empowered to alter its final 1993 and 2000 Regulatory Determinations for CCRs. Therefore, EPA cannot pursue the Subtitle C option. [Fo otnote 13: While “[a]n agency can normally change its position and reverse a decision ... Congress, however, undoubtedly can limit an agency‘s discretion to reverse itself[.]” New Jersey v. EPA, 517 F.3d 574, 582

- 83 (D.C. Cir. 2008). Here, Congress has limit ed EPA‘s ability to reverse its final Bevill Regulatory Determination by specifying prescribed procedures and timeframes for completing the determination and not authorizing the Agency to revisit that final determination and issuing a new determination. ]

Response: The Agency acknowledges and appreciates the comment. The commenter is402

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferrin g a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Numb er: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 9 

### 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:
Other Sections: 2.2 

### Comment Excerpt Text: B. Assuming, For Purposes Of Argument, That EPA Is Authorized To Make A Second Regulatory Determination, EPA Has Failed To Adhere To The Bevill Amendment’s Prescribed
Process

Even assuming that RCRA could be read as authorizing EPA to reverse its final Regulatory Determination for CCRs, the Agency would have to adhere to the statutorily prescribed procedures that Congress demanded EPA follow in determining whether and how to regulate CCRs. EPA itself has recognize d this; in responding to Representative Markey‘s inquiry to EPA about the steps it would need to take to regulate CCRs under RCRA Subtitle C, the Agency stated that it would be “advisable [for EPA] to go through the same process we followed” in issuing the 1993 and 2000 final Regulatory Determinations. [Footnote 14: See Frank Letter, attached as Appendix 4.] Despite what it told Congress, EPA has inexplicably strayed beyond the plain language of the statute by proposing to reverse its final Regulatory Deter minations for CCRs without following the statutorily

- required process it followed for issuing those
Determinations in the first instance.

As explained above, the Bevill Amendment requires that, before making any final regulatory determination for CCRs, EP A first must study CCRs pursuant to the eight statutory study factors and then “publish a report on such study, which shall include appropriate findings.” RCRA § 8002(n). The statute then directs that “such study and findings [i.e., the Report to Congress] shall
be submitted to the Committee on Environment and Public Works of the United States Senate and the Committee on Energy and Commerce of the United States House of Representatives.” Id. Following submission of the report to the appropriate congressiona l committees, the statute directs EPA to conduct public hearings and provide an opportunity for comment on the Report to Congress, and either determine to promulgate regulations regulating CCRs under RCRA‘s Subtitle C regulations or determine that such reg ulations are unwarranted. RCRA § 3001(b)(3)(C). Following this process, EPA was directed to publish its regulatory determination, “which shall be based on information developed or accumulated pursuant to such study, public hearings, and comment, in the Fed eral Register accompanied by an explanation and justification of the reasons for it.” Id.403

Despite these unambiguous statutory conditions for determining whether and how to regulate CCRs under RCRA, EPA has not complied with these conditions in proposing t o reverse and reissue its final Regulatory Determination for CCRs. Among other things, EPA has not prepared a Report to Congress setting forth its rationale for proposing to reverse course and issuing a new regulatory determination declaring that CCRs now warrant Subtitle C regulation. This failure violates the express terms of the statute that any final regulatory determination be based on public hearings and comments on the Report to Congress. This requirement is not satisfied by the
truncated and abbrevi ated review of the Bevill Amendment‘s statutory study factors presented by EPA in the instant proposal.

The language of the statute could not be clearer on this point: following submission of its Report to Congress, and after public hearings, and comment on the report, EPA was to publish its regulatory determination “which shall be based on information developed or accumulated pursuant to such study [i.e., EPA‘s Report to Congress], public hearings, and comment, in the Federal Register accompanied by an ex planation and justification of the reasons for it.” RCRA § 3001(b)(3)(C). The D.C. Circuit has confirmed that the statute unambiguously directs that the final regulatory determination is to be based on the Report to Congress. EDF v. EPA, 852 F.2d at 1314 ( “The statute clearly states that the agency is to base its regulatory determination on the information gathered for the § 8002(p) study”). [Footnote 15: The Section 8002(p) study refers to the EPA‘s Report to Congress on certain mining wastes that also wer e subject to the Bevill Amendment. Importantly though, the D.C. Circuit‘s decision is equally applicable to CCRs, as the statutory process for EPA issuing a final Regulatory Determination for mining wastes and CCRs is identical. See RCRA § 3001(b)(3)(C) (r eferencing both the CCR § 8002(n) study and mining waste § 8002(p) study).] As the Supreme Court stated in Nat’l R.R. Passenger Corp. v. Nat’l Ass’n of R.R. Passengers (Amtrak), “[w]hen a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.” 414 U.S. 453, 458 (1974).

Thus, even assuming EPA was authorized to render a new and revised regulatory determination, such determination must be preceded and predicated on a new Report to Congress. Even EPA has recognized that any final regulatory determination must be predicated on the Report to Congress. See 75 Fed. Reg. at 35151 (explaining that EPA addressed the Bevill statutory study factors for CCRs in the 1988 and 1999 Reports to Congress and “[t]he findings of thes e two Reports to Congress were the basis for our decisions in the August 1993 and May 2000 Regulatory Determinations to maintain the Bevill exemption for CCRs.”); see also 65 Fed. Reg. at 32219 (detailing how EPA‘s 2000 final Regulatory Determination was b ased on public comments on the Agency‘s 1999 Report to Congress).

Representative Bevill underscored the point that the public hearing and comment process was intended to directly respond to EPA‘s Report to Congress and that any final regulatory
determinat ion was to be based on the information resulting from that process: “Finally, let me direct the House‘s attention to the fact that after EPA concludes these studies, it will be required to obtain public views on them and to make known whether, as a result of this process, EPA believes any regulation of these materials is necessary.” 126 Cong. Rec. at 3362 (emphasis added).

Here, of course, there is no Report to Congress recommending that CCRs be regulated under404

RCRA Subtitle C. This is especially egregious given that the Reports to Congress that EPA did provide to Congress made clear that CCRs do not warrant regulation under RCRA‘s Subtitle C hazardous waste program and that, therefore, EPA would not pursue this regulatory path. Now, more than ten years lat er, EPA is proposing to reverse that decision and issue a new regulatory determination for CCRs without explaining its reasoning to Congress as required by the statute, and without allowing for public comment and hearings on the Report to Congress.

EPA ma y believe that its abbreviated review of the Bevill statutory factors in the proposed rule is the functional equivalent to preparing and submitting a Report to Congress, but the Agency‘s view is legally flawed for at least three reasons. First, as explaine d above, such a position would be at direct odds with the plain language of the statute, which unambiguously commands that any final regulatory determination be based on the Report to Congress. The statute simply does not authorize the type of fast

- track d ecision

- making process that EPA is attempting to employ under the Subtitle C option.

Second, the statute does not authorize the Agency to collapse the Bevill Amendment‘s statutory
decision

- making process into the more abbreviated exercise, which the Agenc y is undertaking here, by combining a proposed reversal of its earlier final Regulatory Determinations with the proposed development of Subtitle C regulations for CCRs. As EPA candidly admits, the end result would be the issuance of a new regulatory determ ination calling for Subtitle C regulation along with the final Subtitle C regulations. This ignores the plain language and purpose of the Bevill Amendment which requires the regulatory determination to precede the promulgation of any subsequent regulations

.

Looking again at the statutory text, RCRA Section 3001(b)(3)(C) provides that after issuing and obtaining public input on its Report to Congress, EPA was to “either determine to promulgate regulations” for CCRs under RCRA Subtitle C “or determine that s uch regulations are unwarranted.” The Agency was then directed to publish its final determination in the Federal Register. Id. As the D.C. Circuit has explained, the text of the Bevill Amendment juxtaposes the terms ?determination‘ and ?regulation,‘ . . .s ignifying that, consistent with the principle that effect must be given to each word of a statute, the two terms were intended to have distinct meanings.” Am. Portland Cement Alliance v. EPA, 101 F.3d 772, 775 (D.C. Cir. 1996) (“American Portland Cement”). Given this distinction, the sequence of actions directed by Section 3001(b)(3)(C) makes clear that the regulatory determination

– whether or not to regulate
CCRs under Subtitle C

– was to be a separate and distinct step from the subsequent promulgation
of any such regulations.

This statutory step

- wise process is consistent with the Bevill Amendment‘s legislative history that EPA employ a more deliberative, sequential procedure than that traditionally applied to other wastes under RCRA in determining wheth er and how EPA should regulate Bevill wastes in the first instance. See e.g., EDF v. EPA, 852 F.2d at 1314 (“Indeed, our reading of the statute and the legislative history strongly suggests that Congress designed the Bevill Amendment to break with the prev ious approach to regulation of hazardous industrial wastes.”). Under the Bevill Amendment, only after the regulatory determination has been issued does the statute contemplate EPA undertaking any appropriate rulemakings based on the determination. As the c ourt explained in American Portland Cement:405

Section 3001(b)(3)(C) provides the product of the notice and comment process [on the Report to Congress] will be a determination of whether regulation is warranted in the future, not regulations themselves. Whil e Congress established a timetable for EPA‘s Regulatory Determination, it set no deadline for the promulgation of regulations that EPA might find necessary under § 3001(b)(3)(C). Accordingly, the notice and comment proceedings [on the Report to Congress] w ere aimed at informing EPA‘s decision at an intermediate rather than ultimate stage in the rulemaking process.

101 F.3d at 777.

Therefore, the accelerated decision

- making process contemplated in EPA‘s proposed Subtitle C option

– involving the simultaneo us reversal and reissuance of the final Regulatory Determination for CCRs, coupled with the issuance of Subtitle C hazardous waste regulations for
CCRs

– is flatly inconsistent with the statute. Indeed, the public notice and comment process on the Report t o Congress is focused only on the appropriateness of EPA‘s evaluation of the Bevill Amendment‘s eight statutory study factors and EPA‘s recommendation in that Report on whether CCRs warrant regulation under Subtitle C. The notice and comment process on any subsequent rulemaking implementing a final regulatory determination necessarily involves a wholly separate set of legal and factual issues. Therefore, as the D.C. Circuit recognized, the statute does not authorize EPA merging these two distinct agency act ions into a single step. By attempting to merge the two separate agency actions together in the instant rulemaking, EPA has not clearly delineated its rationale for proposing to reverse and issue a new regulatory determination from the rationale underlying the proposed Subtitle C regulations. The result is a confusing and disjointed proposal that fails to comply with the sequential decision

- making and implementation process required by the statute. This is why Congress established a formalized step

- wise pro cess for issuing the final regulatory determination and any subsequent regulations.

Finally, EPA‘s failure to issue a new Report to Congress setting forth its reasoning on why it now believes CCRs warrant hazardous waste regulation

– after twice reaching just the opposite
conclusion

– deprives Congress of its statutorily prescribed right to be fully informed of any such recommendation. Congress required this so that it could evaluate and respond, as appropriate, to the Agency‘s proposed course of action be fore EPA makes a final Regulatory Determination and develops federal regulations. This is not a mere procedural formality. As Representative Bevill emphasized when introducing his amendment, it was especially critical that EPA not make the final regulatory determination in isolation, but that Congress and relevant federal agencies be
involved in the decision

- making process. 126 Cong. Rec. at 3362. The multi

- step decision

making process set forth in the Bevill Amendment, including the submission of a Report to Congress, was specifically designed to enable Congress and other federal agencies to “evaluate the basis of the Agency‘s decision, and to address the question of what degree of regulation, if any, is appropriate [emphasis added]” and ultimately to ensur e that the final regulatory determination was consistent with the nation‘s “commitment to develop a coherent and consistent policy toward the use of our coal and other energy resources.” Id. This multi

- stake holder process reflects Congress‘ intent that it , along with other informed federal agencies and not EPA in isolation, are responsible for striking the delicate balance between the nation‘s environmental and energy goals.406

Indeed, a key purpose of Congress requiring EPA to submit its Report to Congress was to ensure that any final regulatory determination appropriately reflect Congress‘ intentions that any regulation of CCRs not discourage the development of coal as one of the national primary sources of energy. This is precisely the type of oversight ro le that Congress reserves for itself when requiring agencies to submit reports to Congress prior to taking regulatory action. See Natural Res. Def. Council, Inc. v. Hodel, 865 F.2d 288, 319 (D.C. Cir. 1988) (“NRDC v. Hodel”) (in explaining Congress‘ abilit y to respond to an agency report that is required to be submitted to Congress, the Court observed that “[i]t scarcely bears more than passing mention that the most representative branch is not powerless to vindicate its interests or ensure Executive
fideli ty to Legislative directives.”).[Footnote 16: See also generally James R. Bowers, “Regulating the Regulators” (1990); Joel D. Aberbach, “Keeping a Watchful Eye: The Politics of Congressional Oversight 132” (1990). For example, Congress can control agency a ction by writing more detailed legislation, by requiring staff investigations or field studies, or through agency reports required by Congress. See also United States v. S. Ind. Gas & Elec. Co., 2002 U.S. Dist. LEXIS 20936 at *14 (S.D. Ind. Oct. 24, 2002) (noting that the purpose of Congress requesting an agency to report on a new rule was “was to provide a check on administrative agencies‘ power to set policies and essentially legislate without Congressional oversight.”).] In this case, EPA‘s failure to pr epare a Report to Congress regarding its proposal to regulate CCRs under RCRA‘s hazardous waste program has eviscerated the statutory oversight role provided to Congress in the Bevill Amendment‘s decision

- making process for CCRs.

For these reasons, even a ssuming EPA had the authority to revisit and reverse its previous, final Regulatory Determination for CCRs, the Agency‘s proposed Subtitle C option does not comport with the statutory process that Congress imposed on EPA in determining whether and how to

r egulate CCRs under RCRA Subtitle C. At a minimum, EPA must conduct thorough studies demonstrating a clear need for regulation; provide to Congress a report detailing its findings on those studies; conduct public hearings and solicit comments on the new Rep ort to Congress; and finally base any final regulatory determination on the new Report to Congress. Congress did not painstakingly craft such mechanisms into the statute for its own amusement and EPA is not at liberty to ignore such clear congressional dir ections.

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10489

- 15 

### Organization 1 

### : Harsco Minerals International, a division of Harsco Corporation 

### Commenter 1 : Gene Iannazzo Commenter Type: Beneficial User
Classification: Substantive Comment Category:407

Current Task: Examine Conte xt Assigned/Due:



### Comment Excerpt Text: The administrative record does not support changing the Agency's existing policy regarding CCRs' RCRA status and reclassifying waste boiler slag and other waste CCRs as RCRA Subtitle C "special" or "hazardous" waste s. Such an action would be arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. §§ 551, et seq. ("APA").

Response: The Agency acknowledges and appreciates the comment. 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

- 10489

- 6 

### Organization 1 

### : Harsco Minerals International, a division of Harsco Corporation 

### Commenter 1 : Gene Iannazzo Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Any Election By U.S. EPA to Regulate Boiler Slag Under RCRA Subtitle C On This Administrative Record Is Subject To Reversal In The Courts

U.S. EPA erroneously grouped all CCRs together in the NPRM, however, the administrative record for the proposed rule is empty of evidence associated with boiler slag.

The lack of evidence on boil er slag here, magnified by the agency's complete reversal of course
from two earlier record

- supported rulemakings on CCRs, renders an election of Subtitle C status for boiler slag arbitrary and capricious and contrary to law

Response: The commenter is ref erred 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

- 10489

- 66 

### Organization 1 

### : Harsco Minerals International, a division of Harsco Corporation 

### Commenter 1 : Gene Iannazzo Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:408

Other Sections: 3.1.2 

### Comment Excerpt Text:

VI. RECLASSIFYING WASTE BOILER SLAG AS RCRA SUBTITLE C WASTE WOULD
BE ARBITRARY AND CAPRICIOUS AND CONTRARY TO LAW

A. The Boiler Slag Data Are Inadequate To Justify Subtitle C Regulation

As explained above, the data in the administrative record for this rulemaking fail to justify regulating waste boiler slag as a special or hazardous waste under Subtitle C of RCRA. EPA claims that CCR leachate issues are driving the proposed action. But the leachate data in t he record show no significant leachate issues associated with boiler slag. The only boiler slag leachate data cited in the docket are the same leachate testing data that supported the Agency's May 22, 2000 conclusion that boiler slag and the other CCRs sho uld be regulated as Subtitle D

non

- hazardous wastes, and not as Subtitle C hazardous wastes. [Footnote 132: See 75 Fed. Reg. at 35,138] As the NPRM notes, the TCLP test results supporting EPA's May 2000 CCR waste
characterization decision showed that all o f the metals in the boiler slag leachate samples had median values that were orders of magnitude lower than RCRA regulatory levels used to characterize a material as hazardous waste. [Footnote 133: See 75 Fed. Reg. at 35,139 Table 2] Strikingly, the more r ecent CCR TCLP data cited in the NPRM did not include any results from boiler slag analyses. [Footnote 134: See, e.g, 75 Fed. Reg. at35,139, Table 3]

EPA has not offered or received into the docket any relevant leachate test data or other technical
eviden ce about boiler slag that differs significantly from

- much less contradicts

– the data the Agency cited in its 1993 and 2000 decisions. Harsco has provided new boiler slag leachate data
derived from both recent TCLP tests and from the alternate leachate m ethod adopted for this rulemaking (the Vanderbilt method). All of this data confirm the absence of leachate issues associated with boiler slag. Given the current state of scientific and technical knowledge about boiler slag and its beneficial uses, EPA's p rior 1993 and May 2000 Regulatory Determinations that kept beneficially reused CCRs exempt from RCRA's hazardous waste regulations remain valid and appropriate for boiler slag.

Boiler slag's vitrified physical state renders the material and its vanous con stituents generally immobile and environmentally benign. Therefore, any final EPA rule must ensure that boiler slag maintains its status as exempt from RCRA Subtitle C regulation when beneficially reused or
discarded.

The APA permits a court to set aside agency action that is "arbitrary" or "capricious." [Footnote 135: See 5 US C. ~ 706(2)(A)] To meet the APA standard for a new rulemaking, an agency must "examine the relevant data and articulate a satisfactory explanation for its action." [Footnote 136:
M otor Vehicle Mfrs. Ass 'n. of the United States, Inc v. State Farm MUI. AUla. Ins. Co., 463 US 29 (1983).] In this case, the record lacks any boiler slag leachate data or any other boiler slag

specific data supporting a finding that boiler slag presents a potentially substantial hazard to human health or the environment when discarded. Accordingly, a decision to regulate waste boiler slag under Subtitle C would be arbitrary and capricious, because there is no "relevant data," nor a "satisfactory explanation " for a decision by EPA to lump boiler slag under the
Subtitle C classification.409

EPA simply lumps boiler slag in with other CCRs even though there is no reasonable explanation for that approach. For example, one such report that combined bottom ash and sl ag noted that "[s]ome selection and grouping of these types was necessary to product a consistent and simple screening analysis." [Footnote 137: RTI, Constituent Screening for Coal Combustion Wastes, Oct. 2002 (prepared for EPA) at 2

- 3.] Making life simple r for report writers is not a valid reason to combine boiler slag with other CCRs and arbitrarily assume they possess the same properties and present the same potential for creating human health and environmental

concerns.

B. There Is No Lawful Reason To Devastate The Beneficial Reuse Industry For Boiler Slag And The Associated Jobs In The Industry

The scope of APA review is heightened if the agency action results in a change to an existing policy. An agency must show that there are good reasons for a new policy. [Footnote 138: Fed Commc 'ns Comm 'n v Fox Television Stations, Inc, 129 S. Ct. 1800, 18 \ 1 (2009).] "When an agency disregards facts that underlay a previous policy, or when a prior policy has engendered serious reliance interests, an agency must provide a more detailed justification for its decision to alter a policy than what would suffice for a new policy created on a blank slate. It would be arbitrary and capricious to ignore such matters." [Footnote 139: Id] EPA's record in this rulemaking fai ls to provide any adequate justification for ignoring the underlying facts and altering the existing RCRA policy governing boiler slag and the other CCRs. Here, there are unchanged facts underlying the existing policy for boiler slag, and the existing poli cy has engendered serious reliance interests

- an industry worth hundreds of millions of dollars and thousands of jobs.

The proposed regulation would have an enormous adverse effect on the economic vitality of the industries that beneficially reuse coal c ombustion residuals in reliance on EPA's existing CCR

waste

- classification policy. Harsco and others in the CCR industry have relied on and made major business decisions based on the scope and longevity of that existing EPA policy. Whole
hosts of businesse s that beneficially reuse boiler slag and other CCRs have flourished in reliance on the Agency's existing policy. Since the initial EPA ruling regarding boiler slag, and under the umbrella of subsequent rulings confirming the beneficial use of coal slag, H arsco has invested millions of dollars in both new construction and capital investments to improve and upgrade existing processing facilities and has negotiated long

- term supply contracts for boiler slag.

Because of EPA's current CCR

- classification policy , Harsco's Mineral Division and the seven other U.S. companies with business models based almost entirely on the beneficial reuse of boiler slag have been able to operate successfully in this country. Adoption of a new rule reversing the existing CCR

- class ification policy would impair significantly the revenues of those eight businesses, currently estimated, on a combined basis, to be approximately $200 million per year, and jeopardize hundreds of their employees' jobs. In addition, there are thousands of s mall businesses, such as roofing contractors, painters, metal working companies, and construction operations that rely on the availability of boiler slag

- based products. Their workers could be negatively impacted by regulations restricting the availability of CCR

- based products or severely stigmatizing such products in the marketplace.410

Tens of thousands of companies purchase boiler slag for beneficial reuse, and together, those companies employ over 100,000 workers. [Footnote 140: See ACAA letter of March 25. 2009 (Exhibil27)] All of the major asphalt roofing companies use boiler slag in their shingles due to performance and cost superiority. In the abrasives industry there are over 7,500 companies that use abrasive blasting materials. Together these indust ries represent hundreds of thousands of workers and affect every aspect of modem life. Sustainable costs and performance attributes for their blasting materials are dependent on uninhibited use of boiler slag.

Since EPA issued its 2000 Regulatory Determin ation for CCRs, the rate at which industry has been beneficially reusing CCRs has grown significantly. [Footnote 141: Id] In 1999, U.S. industry beneficially reused 30 million tons of CCRs, and by 2008, annual beneficial reuse reached 56 million tons. [Foo tnote 142: Id] That growth took place because industry relied on what appeared to be EPA's final resolution of CCRs' RCRA status. [Footnote 143: Id] Industry had the confidence to recycle CCRs into useful products without fear of being subjected to the

exp ensive and daunting Subtitle C regulatory program or facing stigma or litigation concerns. Adopting the Subtitle C proposal, however, would destroy that progress and would raise the very real risk that EPA could change its position regarding all CCRs. Such a scenario would shift industry investment from progressive recycling efforts to a purely defensive CCR management scheme that controls risk by limiting the continued circulation of reused CCRs in the marketplace. These factors are all necessary to the de velopment and continued existence of the boiler slag reuse industry.

The materials in the rulemaking docket are not sufficient to support any regulation of boiler slag under Subtitle C of RCRA, even if EPA were writing on a blank slate. The same absence o f boiler slag data would nullify the legality of a change in regulatory status for boiler slag whether this were a new rulemaking or, as here, a reversal of existing long

- term policy. "It is true that an agency acts arbitrarily when it departs from its pre cedent without giving any good reason."[Footnote 144: N. Cal. Power Agency v. Fed. Energy Regulatory Comm 'no 37 F.3d 1517, 1522 (DC. Cir. 1994).] An agency is required to "provide a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored. Moreover, if the record reveals that the agency has failed to consider an important aspect of the problem or has offered an explanation for its decision that runs counter to the evidence before [it]," the

agency violates the APA. [Footnote 145: People of the Slate of Cal v. Fed. Commc 'ns Comm 'n, 39 F.3d 919, 925 (9th Cir. 1994).] "[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choice made." [Footnote 146: Martin 011 Servo Inc V. Koch Ref Co, 582 F. Supp. 1061,1066 (ND 11 \ 1984).] In this rulemaking, as it relates to boiler slag, EPA fails to meet the APA standard of support widely recognized by f ederal courts.

Because there is no evidence to support the abrupt re

- categorization of waste boiler slag as presenting a substantial hazard to human health or the environment, there is no rational connection between the evidence in the record and the agen cy's decision to categorize boiler slag as a Subtitle C special or hazardous waste. Therefore, a decision to change waste boiler slag's status to that of a special or hazardous waste under RCRA Subtitle C is subject to reversal in the

courts.411

Response: Th e 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

- 10489

- 67 

### Organization 1 

### : Harsco Minerals International, a division of Harsco Corporation 

### Commenter 1 : Gene Iannazzo Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Conte xt Assigned/Due:
Other Sections: 3.1.2 

### Comment Excerpt Text:

CONCLUSION

The data in the NPRM's existing administrative record simply are not adequate to justify a change in the current RCRA regulatory status of waste boiler slag. In 1993 and 2000, EPA

r eviewed the then

- available technical and scientific information concerning all CCRs, including boiler slag, and concluded that there was no basis for classifying any of them as a Subtitle C hazardous waste. [Footnote 147: See 40 CF.R. § 261: 58 Fed. Reg. 4 2,466 (Aug. 9. 1993): 65 Fed. Reg. 32,214 (May 22, 2000).] EPA's current NPRM claims that "new" data exist to support the proposed regulation of boiler slag designated for disposal under RCRA, Subtitle C. A careful review of the rulemaking docket, however, shows that the post

- 2000 data either do not address boiler slag or, if they do mention boiler slag, they basically repeat the same scientific information that supported EPA's prior decisions not to classify boiler slag as a RCRA hazardous waste.
Because o f its vitrified nature, boiler slag does not present leachate concerns, and it is not associated with any of the reported damage cases. The data Harsco has presented in this submission confirm that boiler slag does not present potentially significant risks to human health
or the environment.

The NPRM and its supporting docket materials do not and, in light of the scientific record, cannot provide a detailed and reasonable explanation for altering the Agency's current CCR policy. Without satisfying that thr eshold, a decision to issue a new rule damaging the legions of companies that have relied on the existing CCR policy will run afoul of the "arbitrary or capricious" standard outlined in the APA. Therefore, the boiler slag data in this administrative
record are not sufficient to justify a revision to EPA's existing CCR policy, and waste boiler slag and the other waste CCRs should only be regulated under Subtitle D rather than Subtitle C.

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

- 10497

- 3 

### Organization 1 

### : Seminole Electric Cooperative, Inc. (Seminole) 

### Commenter 1 : Carl Eldred412

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



### Comment Excerpt Text:

b. Even if the Bevill Amendme nt Allowed for an Ongoing Review, EPA Has Circumvented the Statutorily

- Mandated Process Pursuant to the Bevill Amendment, EPA had to “conduct a detailed and comprehensive study and submit a report” based on its analysis of eight (8) specified criteria. 42 U.S.C. § 6882(n). The study had to include a review of appropriate studies and other actions of Federal and State agencies, and participation by industry and other Federal and State agencies. Id. Once completed, a report on the study had to be published an d submitted to the United States Senate Committee on Environment and Public Works and the United States House of Representatives Committee on Energy and Commerce. Id. Public hearings and the opportunity for comment also had to be provided. 42 U.S.C. § 6921 (b)(3)(C). Only after the completion of this process was EPA authorized to determine whether subtitle C regulation of CCRs was warranted. Id. It is this determination, based on the information developed pursuant to the study, public hearings, and public co mment, which had to be published in the Federal Register. Id. Only after this process had been completed could agency rulemaking begin. EPA, however, has ignored this process completely. EPA has not performed a comprehensive study, has not prepared a repor t that can be reviewed by the identified congressional committees or that can be subject to public hearing and comment, and has not published a revised regulatory determination concluding that subtitle C regulation is warranted. Instead, EPA has cherry

- pic ked miscellaneous reports, studies, alleged damage cases, surveys and comments since the 2000 Regulatory Determination, has developed two rule proposals, and has published them in the Federal Register. In so doing, EPA has ignored key elements from each st age of the statutory process and has jumped straight to rulemaking. Under any circumstances, EPA’s bold circumvention of a statutorily

- required process would be egregious, but it is even more so given the potential reversal of its own 1993 regulatory
deter mination and subsequent affirmation in 2000. In both 1993 and 2000, after following the statutorily prescribed process, EPA determined and affirmed respectively, that subtitle C regulation of CCRs was unwarranted. Even assuming that EPA has authority to re visit and reverse its previous regulatory determinations, it must follow the prescribed process and make a determination as to whether subtitle C regulation of CCRs is warranted. Only after that determination has been published may EPA embark upon the rule making process. EPA has not done this, and its proposed regulation of CCRs under subtitle C is unlawful

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.413



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10498

- 23 

### Organization 1 

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

### Commenter 1 : Carl Eldred Commenter Type: El ectric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The Supreme Court of the United States has laid out a two

- part test to determine the validity of agency constructions of agency

- administered statutes:

When a court reviews an agency's construction of the statute which it administers, it is
confronted wit h two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambigu ously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an admini strative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

Chevron U.S.A., Inc. v. NRDC, 467 U .S. 837, 842

- 43 (1984) (emphasis added and notes omitted). Thus, only when there is a “gap for the agency to fill,” may the agency move past the first prong of the Chevron test. When Congress has clearly indicated its intent, however, there is
no room for an agency to re

- interpret its duties. This has been true since the earliest days of the judiciary, when the Supreme Court held that, where the law assigns a “specific duty,” the agency head must execute the duty to the letter of the law. See Marbury v. Mad ison, 5 U.S. (1 Cranch) 137, 170 (1803).

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussi on on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this r ulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11287_CHI

- 065

- 2 

### Organization 1 

### : City Water Light & Power, Springfield, IL 

### Commenter 1 : Christine Zeman Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:414

Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 4.5.1 

### Comment Excerpt Text: If ash must be regulated under RCRA, only the Subtitle D

- prime option should be considered. But USEPA should delay this rulemaking

- the ash proposal is premature . Extensive Information Collection Requests (ICRs) on the details of ash ponds at Electric Generating Units (EGUs) are only now being completed. USEPA recently sent two different teams to our plant site to investigate our ash handling practices, our ash po nds and our landfill, but the results or reports from these two recent site investigations by USEPA have not yet even been completed, but should be part of the factual background on which the ash rule is based. Rulemaking without such detailed information, observations and analyses would be suspect, and wasteful of substantial public and private resources.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11422_P

- 153

- 3 

### 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: 8.9 8.6.2 

### Comment Excerpt Text: Damage Cases

Two Allegheny sites are referred to in recently issued NGO reports as alleged "damage cases" purportedly warranting treatment of CCR as a Subtitle C waste. They are long

- permitted landfills at our Mitchell and Hatfield's Ferry power stations in Pennsylvania. In both cases the di scussions distort the facts about disposal operations and effects on drinking water supplies. They seemingly abjure state and federal water laws and regulations and incorrectly invoke drinking water standards where they have no state or federal applicabili ty. They further ignore the extensive existing regulatory requirements and standards to which Allegheny and other operators are held accountable by EPA, Pennsylvania and West Virginia.

The February 24, 2010 report misconstrues the hydrology of the Mitchel l site and contains errors regarding the station operation of wastewater treatment lagoons and the permitted and engineered coal combustion residuals landfill. Likewise, the alleged Hatfield's Ferry damage case, noted in the more recently published report, also misinterprets the hydrology, applies the wrong standards, misidentifies drinking water well locations, ignores existing monitoring wells and incorrectly describes station disposal practices.

Any EPA reliance on these Allegheny site reports would fai l to meet the most basic principles of administrative law and technical support to which EPA is subject. Contrary to these third party415

allegations, the Pennsylvania regulations have been effective at protecting human health and the
environment. Both of the se sites have been permitted, inspected and monitored by Pennsylvania
under its own rules for decades.

If the other alleged damage cases claimed by the reports are as flawed as those relating to Allegheny and populated by the same factual errors and inval id correlations, EPA must dismiss them as failing to support Subtitle C regulation.

Response: The Agency acknowledges and appreciates the comment. Moreover, the commenter is referred to Unit XI of thee preamble for a discussion of the damage cases

evalua ted by EPA. The commenter is also referred to supporting documents in the docket that relate to the damage cases.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0211

- 29 

### 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: 10.2.2 

### Comment Excerpt Text: As USWAG made clear in its first round of comments on the CCR proposal, the Agency d oes not have the statutory authority to reverse its final regulatory determinations that CCRs do not warrant regulation under Subtitle C of RCRA and, in addition, no category of CCRs warrants listing as a “special waste” under EPA’s hazardous waste listing criteria. [Footnote 2: USWAG Comments on “Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes: Disposal of Coal Combustion Residuals From Electric Utilities” (EPAHQ

RCRA

- 2009

- 0640

- 10483).] As detailed below, none of t he information included in the NODA undermines these positions.

The NODA involves a limited re

- opening of the comment period on the CCR proposal for the express purpose of evaluating the validity of the information identified in the NODA and the propriety of using the information in the CCR rulemaking. Id. at 63252. The NODA offers the opportunity to comment on six general categories of information, including (1) new CCR chemical constituent data, (2) new CCR facility and waste management data, (3) additio nal allegations of damage cases from the management of CCRs, (4) new analyses of state CCR programs, (5) new materials on CCR beneficial use, and (6) new information and potential modeling analyses to update and enhance the draft CCR risk assessment. Id. a t 63254

- 57.

As a preliminary matter, USWAG notes that while it appreciates the opportunity to comment on the above information, the practical value of this opportunity is very circumscribed. EPA provided no suggestion as to how

— or even whether

— it will use the noticed information for purposes of formulating a final CCR rule. [Footnote 3 In rejecting our comment period extension request, EPA explained that the Agency “has not concluded: that this information . . . would necessarily play a role in support for decisions in the final rule.” EPA, Letter to Jim Roewer416

(Oct. 17, 2011) (EPA

- HQ

- RCRA

- 2011

- 0392

- 0134).] Rather, EPA explained that it “cannot definitively state whether this information will provide support for any provision of the final rule, or that the Agency has determined that it is appropriate to rely on this information in developing the final rule” and adds that “it should not be assumed that the specific information
identified in this Notice is the full sum of information received in comments that will be considered or that will influence the Agency’s decision in this rulemaking.” Id. at 63254. EPA states merely that to ensure that the public has the full and complete opportunity to comment on information that has the “ potential to weigh in EPA’s de cisions on the final rule, EPA is reopening the comment period for the limited purpose of allowing the public to comment on the validity and propriety of using this information . . . in developing the final rule.” Id. (emphasis added).

USWAG respectfully suggests that EPA’s complete lack of guidance concerning whether and how the noticed information may be used in developing a final CCR rule has made it exceedingly difficult for the public to comment meaningfully on the NODA. This difficulty was greatly co mpounded by the fact that, for certain information on which the NODA invites comment, including for example the “new materials on beneficial use,” the Agency provides no indication of which documents out of the 129 included in the NODA docket comprise the “new materials on beneficial use.” Rather, the public had to make an educated guess as to what information in the docket constitutes the “new materials on beneficial use” and then speculate further as to how this information may be relevant to EPA in devel oping the final rule. The vacuum in which the public had to operate in trying to assess the relevance and purpose of the inclusion of the information in the NODA docket significantly undermined EPA’s goal of providing the public with “a full and complete o pportunity to comment” on the information identified as having the potential to influence its decisions on the final rule. Id. at 62354. Moreover, due of the lack of guidance about how the noticed information may be used,
commenters have little choice but to be overinclusive in their remarks, commenting on every conceivable potential use of the information. By thus forcing the public to take a scattershot approach to comments, EPA has undoubtedly invited comments that are not nearly as focused (and therefor e useful) as they could have been if EPA had been transparent with respect to whether and, if so, how it intends to use the noticed information in making decisions regarding
the final rule.

Further, the Agency provided an unreasonably short period of time to comment on the NODA. As noted above, 129 documents comprising thousands of pages of material were posted in the NODA docket. Much of this material is technical information and data that requires careful review, and in some cases the assistance of subje ctmatter expert consultants. An inordinate number of the documents were available for review only in hard copy format at EPA’s reading room due to copyright issues.

USWAG and numerous other parties filed prompt requests to extend the comment period on th e NODA. [Footnote 4: USWAG, Letter to EPA (Oct. 12, 2011) (EPA

- HQ

- RQ

- 2011

- 0392

- 0130).] USWAG’s request of 60 additional days to prepare comments was reasonable given that there is no statutory or judicial deadline for the promulgation of a final CCR rule. As USWAG noted in its request, a similar NODA issued on CCRs in 2007

— which included a smaller data set than the present NODA

— included an initial comment period of 90 days, which was subsequently417

extended to over five months. Nevertheless, EPA summarily den ied USWAG’s request five days after it was submitted on the grounds that an additional 60

- day comment period “would [not] represent the best balance of the various interests at stake.” [Footnote 5 EPA, Letter to Jim Roewer (Oct. 17, 2011) (EPA

- HQ

- RCRA

- 2011

- 0392

- 0134).]

USWAG, state regulators, the CCR beneficial use community, and many others have a critical interest in this rulemaking, as it will have a profound practical and economic effect on these groups. It therefore is vitally important that affected groups have meaningful opportunities to convey all relevant information to EPA in this rulemaking process. An extension would have given the public the opportunity to provide EPA with more thoughtful, and thus more useful,
comments on the NODA which would have in turn facilitated the development of a more efficient and effective CCR regulatory program. EPA’s refusal to allow a short extension to the comment period on this NODA was unwarranted and contrary to the intent, if not the letter, of
the notice and comment requirements of the Administrative Procedure Act (“APA”), the public participation provisions of RCRA, (42 U.S.C. § 6974) and Section 6(a) of Executive Order
12866.

Given the above, USWAG used best efforts to review the information in the NODA do cket to assess, to the extent time permitted, the validity of the information. Assuming that USWAG could determine that the information was valid, USWAG then assessed the propriety of using the information in the rulemaking, including whether and how the d ata were relevant to (1) EPA’s consideration of reversing the Bevill Amendment regulatory determinations that CCRs do not warrant Subtitle C regulation; (2) EPA’s proposal to list CCRs as a listed waste under Subtitle C; and (3) the proposed management sta ndards for CCRs in the proposed Subtitle C and Subtitle D regulatory options. As noted above, none of the information in the NODA docket undermined USWAG’s position in its original comments that the rulemaking record does not support the regulation of any category of CCRs under RCRA Subtitle C.

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time. Also, in that the Agency is not promulgating a final rule that regulates CCR under subtitle C of RCRA, all the commenters concerns/arguments pertaining to this option as outlined in the proposed rule are no longer germane to this rulemaking.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0231

- 2 

### Organization 1 

### : American Coal Ash Association (ACAA) 

### Commenter 1 : Thomas Adams Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Exami ne Context Assigned/Due:418

Other Sections: 10.2.2 

### Comment Excerpt Text: II. The enabling statute under which this rulemaking is conducted presumes the importance and
consideration of beneficial use of CCRs.

EPA’s proposed CCR disposal regulations are under the authority of the Resource Conservation and Recovery Act. The EPA office conducting the rulemaking has “Conservation and Recovery” in its name. Nevertheless, the NODA question on beneficial use seeks inp ut on whether conservation and recovery should even be considered in its rulemaking.

In its findings establishing the Resource Conservation and Recovery Act, Congress stated: “The Congress finds with respect to materials, that

— (1) millions of tons of re coverable material which could be used are needlessly buried each year; (2) methods are available to separate usable materials from solid waste; and (3) the recovery and conservation of such materials can reduce the dependence of the United States on forei gn resources and reduce the deficit in its balance of payments.” (Solid Waste Disposal Act, Section 1002 (c).)

Furthermore, Congress stated specific objectives for encouraging materials recovery and reuse throughout Section 1003 of the Solid Waste Dispos al Act.

If EPA fails to consider impacts on materials recovery and beneficial use from its CCR disposal rulemaking, the agency will be in direct opposition to the letter and spirit of the Act from which it derives its rulemaking authority.

III. Disrega rding the impact of this rulemaking on beneficial use would be a significant violation of administrative policy.

Successive administrations have issued executive orders (12866 and 13563) that compel EPA to consider the impact of its proposed regulations on all sectors of society and the economy. Specifically, Executive Order 13563, entitled “Improving Regulation and Regulatory Review” (Jan. 18, 2011), instructs federal agencies, including EPA, to assess benefits and costs of regulations in an effort to “i mpose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations.” The order also directs consideration of alternative regulatory approaches and allowance for public participation in the rulemaking process.

As stated earlier, any decision by EPA to disregard information on CCR beneficial use would
exclude from the cost

- benefit analysis consideration of the fate of more than 40 per cent of the CCRs generated annually in the U.S. It would further disenfranchise the participation of tens of thousands of individuals and entities who submitted testimony on beneficial use in public hearings and the public comment process surrounding the a gency’s proposed rule. Both consequences would be direct and substantial violations of the executive orders.

In addition to executive orders, EPA is compelled to consider information it has received about
beneficial use under the Administrative Procedure Act (“APA”). The APA allows reviewing courts to set aside agency action that is “arbitrary, capricious, an abuse of discretion, or419

otherwise not in accordance with law.” (5 U.S.C. § 706(2)(A).) EPA has received voluminous public comments on its proposed C CR rule that are both relevant and significant pertaining to beneficial use. EPA is not entitled to simply set this information aside without providing analysis and response

Response: The commenter is referred to Unit IV of today’s preamble for a discussi on 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

- 0233

- 1 

### 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:

General Comments

1. As a preliminary matter, MidAmerican believes EPA failed to provide sufficient time to thoroughly analyze and prepare a response to the NODA. In essence, EPA referenced several thousand pages of documents, analyses, reports, and other information that h ave been posted in the docket with an indication that “it should not be assumed that the specific information
identified in this Notice is the full sum of information received in comments that will be considered or that will influence the Agency’s decision s in this rulemaking.” EPA’s stated purpose in “ensuring that the public has had a full and complete opportunity on the information that EPA has so far identified as having the potential to weigh in EPA’s decisions on the final rule,” suggests an impossibi lity

– a full and complete opportunity, within 30 days to review information, the specificity and relevance of which has not yet been determined. EPA has requested that the public respond to information that EPA has had for a year and more. In requests for extension of the comment period, EPA’s response suggested that it was only seeking comment on one narrow issue: the technical validity of the information contained in the docket

– a docket EPA itself acknowledges includes a significant amount of informati on and that “the public has already had well over six months to comment on this rulemaking.” If the public has already had an opportunity to comment, EPA’s issuance of the NODA can only be seen as an attempt to prospectively legitimize its utilization of w hatever data it sees fit in the final rulemaking proposal in an effort to avoid the provisions of the Administrative Procedures Act and the requisite fair notice provisions.

2. It is critical that EPA adhere to its Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility and Integrity of Information Disseminated by the Environmental Protection Agency as referenced in footnote 2 of the NODA in utilizing data upon which to base its decisions. While the NODA suggests that EPA will “ensure the data is of sufficient quality before relying on it in deliberations on the final rule,” the quality of data is only one component of EPA’s guidelines, which also require objectivity, utility and integrity of the information. As420

noted in its “Guidelines”:

It is important that analytic results for influential information have a higher degree of transparency regarding (1) the source of the data used, (2) the various assumptions employed, (3) the analytic methods applied, and (4) the statistical procedures e mployed.

As noted in the Office of Management and Budget “Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies,” [Footnote 1: See 67 Fed. Reg. 8452, February 22, 2002.] “’ objectivity’ includes whether disseminated information is being presented in an accurate, clear, complete and unbiased manner” and also involves “a focus on ensuring accurate, reliable and unbiased information” which may include formal, independent, extern al peer review. MidAmerican supports the use of objective, scientific, peer

- reviewed information to support regulatory determinations

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0248

- 4 

### Organizat ion 1 

### : Headwaters Resources, Inc. 

### Commenter 1 : William Gehrmann III Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.2.2 

### Comment Excerpt Text: II. EPA Is Required to Consider the Beneficial Use Data and Information Under the
Administrative Procedure Act

In addition to the special procedures and criteria EPA must apply in this rulemaking due to the Bevill amendment, EPA must also consider the be neficial use data and information it received, or else any action it takes is likely to be arbitrary and capricious under the Administrative Procedure Act ("APA"). The APA allows reviewing courts to set aside agency action that is "arbitrary, capricious, a n abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In order for an agency action not be arbitrary or capricious, the agency must adequately explain its result and respond to "relevant" and "significant" public comments. Public Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993) (citing Federal Election Comm'n v. Rose, 806 F.2d 1081, 1088 (D.C. Cir. 1986) and Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 & n.58 (D.C. Cir.), cert. denied, 434 U.S. 829 (1977)); see also Cape Cod Hosp. v. Sebelius, 630 F.3d 203, 211 (D.C. Cir. 2011) (vacating and remanding the district court's grant of summary judgment for HHS because HHS failed to provide a reasoned response to the hospitals' comments regarding the challenged rules). The beneficial use data and information submitted to EPA during the comment period are undoubtedly "relevant" and "significant" public comments which EPA must consider and to which it must respond as it develops the final rule.421

Response: The Agency acknowle dges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0250

- 1 

### Organization 1 

### : ARIPPA 

### Commenter 1 : Jeff McNelly Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.2.2 

### Comment Excerpt Text: A. ARIPPA strongly urges the EPA to fully consider the significant impacts of its CCR disposal rulemaking on environmentally beneficial uses of coal combustion products.

EPA acknowledges in its NODA that it h as already gathered “a significant amount of additional data and other factual information relating to the beneficial use of CCR.” ARIPPA believes that disregarding this information at this time would make a travesty of a rulemaking process that purports t o be based on fairness, rule of law and scientific integrity. Accordingly we believe EPA is bound by purpose, statute, administrative policy, and agency precedent to consider the impacts of beneficial use in the development of its final rule.

B. EPA’s pu rpose requires the agency to consider impacts of its rulemaking on the beneficial use
of CCRs.

EPA’s statement of purpose includes the following objectives:

- That “federal laws protecting human health and the environment are enforced fairly and
effectiv ely;

- environmental protection is an integral consideration in U.S. policies concerning natural resources, human health, economic growth, energy, transportation, agriculture, industry, and international trade, and these factors are similarly considered in establishing environmental policy;

- environmental protection contributes to making our communities and ecosystems diverse, sustainable and economically productive; and

- The United States plays a leadership role in working with other nations to protect t he global environment.”

Failure to fully consider the impact of EPA’s CCR disposal rulemaking on beneficial use would be counter to these objectives.

ARIPPA’s original data submission to this docket contains voluminous information regarding
the benefit s and volume of CFB ash utilization for abandoned mine land reclamation which inturn vastly improves other environmentally impaired natural resources such as polluted
streams. Beneficial use of CFB ash

- CCRs is a key component in improving the sustainabilit y and economic productivity of numerous regional segments of the U.S. economy. Exclusion of this information would be ineffective, unfair and counter to EPA’s objective to provide “integral422

consideration” in establishing environmental policy.

C. The enab ling statute under which this rulemaking is conducted presumes the importance and
consideration of beneficial use of CCRs.

In its findings establishing the Resource Conservation and Recovery Act, Congress stated: “The Congress finds with respect to mater ials, that

— (1) millions of tons of recoverable material which could be used are needlessly buried each year; (2) methods are available to separate usable materials from solid waste; and (3) the recovery and conservation of such materials can reduce
the de pendence of the United States on foreign resources and reduce the deficit in its balance of payments.” (Solid Waste Disposal Act, Section 1002 (c))

EPA’s proposed CCR disposal regulations are under the authority of the Resource Conservation and Recovery Act. The EPA office conducting the rulemaking has “Conservation and Recovery” in its name. In spite of these known factors the NODA question on beneficial use seeks input on whether conservation and recovery should even be considered in its rulemaking....an overwhelming affirmation seems rather evident given the underlying legislation and the moniker the EPA currently utilizes.

It is ARIPPA’s opinion that if EPA fails to consider impacts on materials recovery and beneficial use from its CCR disposal rulemak ing, the agency will be in direct opposition to the letter and spirit of the Act from which it derives its rulemaking authority.

D. Disregarding the impact of this rulemaking on beneficial use would be a significant violation of administrative policy.

Successive administrations have issued executive orders (12866 and 13563) that compel EPA to consider the impact of its proposed regulations on all sectors of society and the economy. Specifically, Executive Order 13563, entitled “Improving Regulation and Regulatory Review” (Jan. 18, 2011), instructs federal agencies, including EPA, to assess benefits and costs of regulations in an effort to “impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among othe r things, and to the extent practicable, the costs of cumulative regulations.” The order also directs consideration of alternative regulatory approaches and allowance for public participation in the rulemaking process.

As stated earlier, any decision by EPA to disregard information on CFB

- ash

- CCR beneficial use
would exclude from the cost

- benefit analysis consideration of the fate of ARIPPA plants, its employees, and the annual reclamation of hundreds of acres in AMLAMD regions. It would
further disenfran chise the participation of associations, individuals and entities who submitted testimony on beneficial use in public hearings and the public comment process surrounding the agency’s proposed rule. Both consequences would be direct and substantial violatio ns of the
executive orders.

In addition to executive orders, EPA is compelled to consider information it has received about beneficial use under the Administrative Procedure Act (“APA”). The APA allows reviewing courts to set aside agency action that is “arbitrary, capricious, an abuse of discretion, or423

otherwise not in accordance with law.” (5 U.S.C. § 706(2)(A).) EPA has received voluminous public comments on its proposed CCR rule that are both relevant and significant pertaining to
beneficial use. EPA is not entitled to simply set this information aside without providing analysis and response.

E. The agency made consideration of beneficial use a precedent when it included extensive requests for data on the topic in its original Proposed Rule.

EPA es tablished the precedent for consideration of beneficial use in its current rulemaking through the inclusion of questions related to beneficial use in its original Proposed Rule. In order to respond to EPA’s questions, ARIPPA expended thousands of man

- hours reading, analyzing, and responding to the Proposed Rule. Our response clearly outlined how the beneficial use of CFB ash has improved the environment in many regions of the U.S. suffering from the effects of Abandoned Mine Lands and correlating Acid Mine Drainage. Dismissal of such information would serve only to usurp the spirit of the regulatory process commonly practiced to date in our nation and discourage future citizen efforts to supply input to government agencies established under the guise of...of t he people...for the people... of this nation.

F. The agency should consider the input from various Federal sources concerning the beneficial
use of ash:

Joseph Pizarchik, Director of OSMRE, stated in a 2010 letter to EPA “It is OSM’s view that CCRs

- CCPs t hat are suitable for placement or beneficial use on a mine based on appropriate testing be able to be placed in the appropriate mine with no pollution from
the CCRs

- CCPs as the ultimate standard.”

OSMRE’s 2010 memo to OMB commenting on EPA draft of the p roposed rule: “The RIA fails to explain how it would be possible to disassociate the beneficial use, including mine placement, from the hazardous waste stigma that would be attached to the CCRs under this proposal. The proposal and RIA just exclude CCR be neficial uses without any explanation and, more importantly, without any scientific basis. There are several references that should have been cited to provide an adequate scientific basis for differentiating beneficial use from disposal.

NRC

- NAS report f

indings (which EPA contracted for) conclusion report states: “Therefore, the committee recommends that secondary uses of CCRs that pose minimal risks to human health and the environment be strongly encouraged....’Government agencies should examine ways in w hich they can promote CCR use or remove impediments to its use.” Pg 148

Response: The Agency acknowledges and appreciates the comment.

Section 2.1.6.1

- Legal challenges to the NODA notice Total Number of Submissions: 10 Total Number of Comments: 12424



### Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0060

- 1 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG) 

### Commenter 1 : Douglas Green Commenter Type: Trade Association
Classification: NODA2 Substantive Comment Category:
Current Task: Examine Context Assigned /Due:



### Comment Excerpt Text: As a preliminary matter, USWAG notes that while it appreciates the opportunity to comment on the above information, the practical value of this opportunity is very circumscribed. The Agency provided an unreasonably short perio d of time

– only 30 days

– to comment on the NODA, which contains a significant amount of new information and requests comments on factors fundamental to the final rule, including the appropriate regulatory path forward and critical issues regarding scope and implementation. USWAG and numerous other parties filed prompt requests to extend the comment period on the NODA. [Footnote 2: USWAG, Letter to OSWER (Aug. 5, 2013) (EPA

- HQ

- RQ

- 2012

- 0028).] USWAG’s request of 60 additional days to prepare

comments was re asonable. USWAG, state regulators, the CCR beneficial use community, and many others have a critical interest in this rulemaking, as it will have a profound practical and economic effect on these groups. It therefore is vitally important that affected part ies have meaningful opportunities to convey all relevant information to EPA in this rulemaking process. An extension would have given the public the opportunity to provide EPA with more thoughtful, and thus more useful, comments on the NODA which would hav e in turn facilitated the development of a more efficient and effective CCR regulatory program. EPA’s refusal to allow a short extension to the comment period on this NODA was unwarranted and contrary to the intent, if not the letter, of the notice and com ment requirements of the Administrative Procedure Act (“APA”), the public participation provisions of RCRA, (42 U.S.C. § 6974) and section 6(a)
of Executive Order 12866

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0060

- 16 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG) 

### Commenter 1 : Douglas Green Commenter Type: Trade Association
Classification: NODA2 Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: D. EPA Should Propose Overfill Requirements Before Finalizing Such Standards

While USWAG appreciates EPA’s request for comment on how best to develop controls tailored to the unique design issues associated with overfill units, the request f or comment on this issue in425

the NODA does not excuse the Agency from its obligation under the Administrative Procedure Act (“APA”) to provide the public with an opportunity for notice and comment on the final regulations that EPA eventually develops for su ch units. EPA has not fulfilled this APA obligation in the NODA; instead, the Agency understandably has identified an issue that it did not consider in its original CCR proposal and has requested input from the public regarding how
best to address the issu e going forward. From a rulemaking perspective, this is more akin to the issuance of an advanced notice of proposed rulemaking, where the Agency first sets forth general concepts and requests comments on how to develop proposed regulatory text and then fol lows

up with a proposed rule setting forth its regulatory approach and the associated text.

Strict adherence to the APA requirements is especially important here, where EPA has simply posed a series of technical questions regarding how best to regulate ov erfill units, yet has not signaled how it intends to answer those questions or, most importantly, what technical requirements it actually plans to impose on such units. Therefore, because the Agency has not proposed its regulatory approach for overfills, t he public has not had an opportunity to comment on any such proposed regulations . USWAG believes that EPA must propose such standards for public notice and comment prior to the Agency issuing final controls for overfill units

Response: The Agency acknowledges and appreciates the comment, however the issue of overfills as described in NODA 3 is addressed in Unit VI of the preamble as well as in the Response to Comment document addressing overfills. The reader is referred to the

introduct ory section of this volume of the Response to Comment document that identifies the proper volume for overfills.



### Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0066

- 1 

### Organization 1 

### : Arizona Public Service Company (APS) 

### Commenter 1 : Chas Spell Commenter Type: Electric Utility Company
Classification: NODA2 Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: APS notes that while it appreciates the opportunity to comment on the above information, the practical value of this opportunity is very circumscribed. The Agency provided an unreasonably short period of time

- only 30 days

- to comment on the NODA, which contains a significant amount of new information and requests comments on issues fundamental to the final rul e, including the appropriate regulatory path forward and critical issues regarding scope and implementation. APS filed a prompt request to extend the comment period on the NODA. Although APS’s request for 60 additional days to prepare comments was reasonab le, EPA denied that request on August 22, 2013

Response: The Agency acknowledges and appreciates the comment.426



### Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0069

- 1 

### Organization 1 

### : Ameren Missouri 

### Commenter 1 : Commenter Type: Electric Utility Company
Classification: NODA2 Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: First although we appreciate the opportunity to comment on the above information, the practical value of this opportunity is very limit ed. We were provided only 30 days to comment on the NODA, which contains a significant amount of new information and requests comments on issues fundamental to the final rule, including the appropriate regulatory path forward and critical issues regarding scope and implementation. AMO filed a request to extend the comment period on the NODA for 60 additional days. We, like many other entities and state regulators, have a critical interest in this rulemaking, as it will have a profound practical and economic effect on our operations. EPA’s refusal to allow a short extension to the comment period on this NODA was unwarranted and contrary to the intent, if not the letter, of the notice and comment requirements of the Administrative Procedure Act, the public par ticipation provisions of RCRA, (42 U.S.C. § 6974) and section 6(a) of Executive Order 12866

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0070

- 1 

### Organization 1 

### : Ameren Energy Resources Company, L.L.C (AERC) 

### Commenter 1 : Commenter Type: Electric Utility Company
Classification: NODA2 Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: First although we appreciate the opportunity to comment on the above information, the practical value of this opportunity is very limited. We were provided only 30 days to comment on the NODA, which contains a significant amount of new information and requests comments on issues fundamental to the final rule, including the appropriate regulatory path forward and critical issues regarding scope and implementation. AERC filed a request to extend the comment period on the NODA for 60 additional days. We, like many other entities and state regulators,
have a critical interest i n this rulemaking, as it will have a profound practical and economic effect on our operations. EPA’s refusal to allow a short extension to the comment period on this NODA was unwarranted and contrary to the intent, if not the letter, of the notice and comm ent requirements of the Administrative Procedure Act, the public participation provisions of RCRA, (42 U.S.C. § 6974) and section 6(a) of Executive Order 12866427

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0075

- 7 

### Organization 1 

### : National Rural Electric Cooperative Association (NRECA) 

### Commenter 1 : Dorothy Kellogg Commenter Type: Trade Association
Classification: NODA2 Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Since overfill units were not addressed in the 2010 proposed rules, EPA should propose standards for such units and provide the public an opportunity to review and comments on them

Response: The Agency acknowledges and appreciate s the comment. The commenter is further referred to the Unit VI discussion of overfills that is in the preamble to today’s rule. The commenter is also referred to the appropriate volume of the response to comment document
that addresses overfills.



### Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0082

- 3 

### Organization 1 

### : USC Technologies (USC) 

### Commenter 1 : Commenter Type: Beneficial User
Classification: NODA2 Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

Based on the distinguishing factors identified above, reliance solely on volume or on surface landfills, i.e., the data sets identified by the NODA, are inadequate and fail to adequately consider the significant benefits that accrue from USC’s environmentally soun d use of CCPs. It would be arbitrary and capricious for EPA to rely on these limited data sets to broadly conclude that all large

- scale fill activities constitute waste management without regard to other factors that minimize the potential health risks of concern. USC’s use of subsurface, self

- encapsulated CCPs to provide stabilization support for commercial, residential, and civic development illustrates that large

- scale fill can properly be deemed “beneficial use.”

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

- 2012

- 0028

- 0084

- 1 

### Organization 1 

### : MidAmerican Energy Holdings Company (MidAmerican)428



### Commenter 1 : Commenter Type: Electric Utility Company
Classification: NODA2 Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Ex cerpt Text: 1. As a preliminary matter, MidAmerican believes EPA failed to provide sufficient time to thoroughly analyze and prepare a response to the NODA. EPA provided structural integrity evaluation reports for 522 surface impoundments at 209 facilities . Due to time constraints, it was impossible to conduct a thorough and comprehensive analysis of all the data. EPA referenced several thousand pages of documents, analyses, reports, and other information that have been posted in the docket with an indicati on that “it should not be assumed that the specific
information identified in this NODA is the full sum of the information that will be considered or that will influence the Agency’s decisions in this rulemaking.” [Footnote 1: 78 Fed. Reg. at 46941.] EPA?s stated purpose in “provid[ing] the public with a full and complete opportunity on the information that EPA identified to date as having the potential to weigh in [EPA?s] decisions,” [Footnote 2: Id. at 46942.] presents an impossibility

– a full and comple te opportunity, within 30 days, to review information, the specificity and relevance of which has not yet been determined. EPA has requested that the public respond to information that EPA has had for at least a year.

2. It is critical that EPA adhere to its Information Quality Guidelines as referenced in the text and in footnote 3 of the NODA [Footnote 3: Id.] in utilizing data upon which to base its decisions. While the NODA suggests that EPA will “ensure the data is of sufficient quality before relying on it in deliberations on the final rule,” the quality of data is only one component of EPA?s guidelines, which also require objectivity, utility and integrity of information.

As noted in the Office of Management and Budget “Guidelines for Ensuring and Ma ximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies,” [Footnote 4: See 67 Fed. Reg. at 8452, February 22, 2002.] “objectivity? includes whether disseminated information is being presented in an accurate , clear, complete and unbiased manner” and also involves “a focus on ensuring accurate, reliable and unbiased information” which may include formal, independent, external peer review. MidAmerican supports the use of objective, scientific, peer

- reviewed inf ormation to support regulatory determinations

Response: T he Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0084

- 7 

### Organization 1 

### : MidAmerican Energy Holdings Company (MidAmerican) 

### Commenter 1 : Commenter Type: Electric Utility Company
Classification: NODA2 Substantive Comment Category:
Current Task: Examine Context Assigned/Due:429



### Comment Excerpt Text: MidAmerican’s comments are not necessarily constrained based on (1) EPA ’ s expressed desire
under the NODA to only accept comments on “additional information that may be relevant to the development of a final CCR rule,” and (2) the limited timeframe within which to review and respond to the “additional information that may be relevant to the development of a final CCR rule.” As such, MidAmerican reserves its right to comment on the NODA in the event that EPA has not sufficiently provided the requisite degree of specificity and opportunity for notice and

comment

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0095

- 9 

### Organization 1 

### : Duke Energy 

### Commenter 1 : Richard Meiers Commenter Type: Electric Utility Company
Classification: NODA2 Substantive Comment Category:
Current T ask: Examine Context Assigned/Due:
Other Sections: 3.4.1.1.7 

### Comment Excerpt Text: Duke Energy agrees with EPA when it correctly noted in the current NODA that the development and construction of CCR landfills over pre

- existing CCR surface impoundments and landfills is an expanding practice which was neither considered nor accounted for in the 2010 CCR proposal. [Footnote 17: See Volume 78 Federal Register No.149 at 46946.] Duke Energy agrees with EPA that the appropriate technical standards should be in cluded into the proposed rule regulatory language to address the construction, operation and maintenance of these disposal units, termed “overfills” by EPA. Including technical standards into the existing proposed rule language [Footnote 18: See Federal Re gister Volume 75 No 118 June 21, 2009 at 35252.] in the form of a regulatory test does raise the question of whether or not this would be considered a substantial change to the original proposal. This would require EPA to go through public notice and comme nt to provide an opportunity for stakeholder comments on that new language.

As background, EPA should be aware that many utilities choose to construct overfills because they have very limited possibilities for permitting and constructing new disposal unit s, which often take many years. In our the 2010 comments, Duke Energy highlighted the difficulties associated with acquiring new land, permitting new disposal capacity, constructing landfills, and Duke Energy’s direct experience with overfills. [Footnote 1 9: See Duke Energy Comments submitted to USEPA on Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities; Proposed Rule; 75 Federal. Register 35128 (June 12, 2009)” submitted to EPA Docket # EPA

HQ

- RCRA

– 2009

– 0640 November 19, 2010 pgs. 14

- 17.] The construction of new landfills and surface impoundments over surface impoundments no longer in service provides an alternative to
off

- site disposal capacity (which often requires transporting CCR significant distances away from the generating station).430

Much like all CCR units permitted and constructed on greenfield sites, overfills are constructed
in a site

- specific manner and pose unique construction and operation al issues depending on the site and the characteristics of the surface impoundment no longer in service

Response: The Agency acknowledges and appreciates the comment however all comments on overfills are addressed in the Response to Comment document addre ssing overfills. The commenter is referred to the introductory discussion in the beginning of this document for a more detailed statement as to where the overfill comments and EPA responses can be found.



### Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0103

- 1 

### O rganization 1 

### : PPL Services Corporation 

### Commenter 1 : Craig Shamory Commenter Type: Electric Utility Company
Classification: NODA2 Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: PPL appreciates the opportunity to comment on the above information, but the practical value of this opportunity is very restricted by the limited 30

- day comment period. The NODA contains a significant amount of new information and requests comments on factors fundamental to the
final C CR rule, including the appropriate regulatory path forward and critical issues regarding scope and implementation. PPL, USWAG and numerous other parties filed prompt requests to extend the comment period on the NODA by 60

- days. PPL and many others have a c ritical interest in this rulemaking, as it will have a profound practical and economic effect on us, our subsidiaries, our industry, and electric customers across the country. It therefore is vitally important that affected parties have meaningful opportun ities to convey all relevant information to EPA in this rulemaking process. An extension would have given the public the opportunity to provide EPA with more thoughtful, and thus more useful, comments on the NODA which would
have in turn facilitated the de velopment of a more efficient and effective CCR regulatory program. EPA’s refusal to allow a short extension to the comment period on this NODA was unwarranted and contrary to the intent, if not the letter, of the notice and comment requirements
of the Adm inistrative Procedure Act (“APA”), the public participation provisions of RCRA, (42 U.S.C. § 6974) and section 6(a) of Executive Order 12866

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0108

- 1 

### Organization 1 

### : American Coal Ash Association (ACAA) 

### Commenter 1 : Thomas Adams Commenter Type: Trade Association
Classification: NODA2 Substantive Comment Category:
Current Task: Examine Context Assigned/Due:431



### Comment Excerpt Text: The following is in respon se to the request for comment in the referenced matter. We would like to preface our comments by noting that the interval between publication of this Notice of Data Availability (NODA) and the close of the comment period was too narrow for submittal of a

c omplete response to the items noticed. The American Coal Ash Association (ACAA) submitted a request for an extension to this dead line. This request was denied. As a result we have tailored
our comments to meet the deadline. As the US Environmental Protect ion Agency (EPA) is considering complex issues related to the future of disposal of coal combustion products (CCP) which impact the beneficial use of CCP we believe the thirty day interval for comment was arbitrary and detrimental to the rulemaking in this matter

Response: The Agency acknowledges and appreciates the comment.
Section 2.2

- Role of Eight Bevill (RCRA §8002(n)) Study Factors in Bevill Regulatory Determination for CCRs Generated by Electric Utilities (35149

- 35160): EPA solicits
further info/c omment on how each will factor into EPA’s determination as to whether regulation under RCRA Subtitle C or D is warranted (35150) Total Number of Submissions: 7 Total Number of Comments: 10



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 13 

### 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: III. RECONSIDERATION OF THE STUDY FACTORS OF SECTION 8002(N) OF
RC RA, 42 U.S.C. § 6982(n)

In undertaking the “detailed and comprehensive study” required by the Bevill Amendment, EPA was required to consider adverse effects on human health and the environment from the disposal and utilization of CCRs taking into account eight specific factors. [Footnote 41: 42 U.S.C. § 6982(n).] In the preamble to the proposed rule, EPA reiterates the factors that the Agency promised in 2000 to continue to review: “[T]he extent to which [the wastes] have caused damage to human health or t he environment”; (2) the adequacy of existing regulation of the wastes; (3) the results of an NAS report regarding the adverse human health effects of mercury; and (4) “risk posed by managing coal combustion solid wastes if levels of mercury or other hazar dous constituents change due to any future Clean Air Act air pollution control requirements for coal burning utilities.” [Footnote 42: 75 Fed. Reg. at 35,137.]

EPA also specifically points to the need to consider new information on risk that was not
avail able in 2000 and EPA states that its review could result in a subsequent revision to its4 32

determination.

Thus, in the preamble to EPA’s proposed rule, the Agency reexamines the eight study factors set forth in section 8002(n) in light of “the most recent d ata . . . available.” [Footnote 43: Id. at 35,151.] Such reexamination is essential because considerable evidence has come to light since the 1988 and 1999 Reports to Congress. Evidence concerning volume, toxicity, state program gaps, and damage reveal sub stantially heightened risk and documented adverse impacts on health and the environment from the disposal and utilization of CCRs.

As discussed infra , the applicability of the eight study factors to the agency’s ultimate listing decision is an important l egal issue. Clearly, however, EPA considers evaluation of the eight factors of section 8002(n) central to the choice among the regulatory presented in the proposed
rule: "The final course of action will [ . . . ]result in the selection of a regulatory stru cture that best addresses the eight study factors identified in section 8002(n) of RCRA, and ensures protection of human health and the environment." [Footnote 44: Id. at 35,133.]

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill

Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 70 

### 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: A fundamental purpose of the Bevill Amendment is to ensure that any final regulatory option
selected for CCR utilizes cost

- effective controls, avoids the imposition of undue costs on the utility industry, and does not discourage the use of coal. The Subtit le C regulatory option is inconsistent with congressional intent.

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill

Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06410

- 12 

### Organization 1 

### :433



### Commenter 1 : Anonymous Commenter Type: Anonymous
Classification: Substantive
Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Bevill Regulatory Determination Relating to CCRs from Electric Utilities, subheading A. pg. 93

“...EPA’s application of its discretion in weighing the eight Bevill factors

— and co nsequently
our ultimate decision

—

will be guided by the following principles. The first is that EPA’s actions must be protective of human health and the environment. Second, any decision must be based on sound science. Finally, in conducting this rulemaking , EPA will ensure that its decision processes are transparent, and encourage the greatest degree of public participation...Accordingly, EPA is soliciting further information and public input on each of these considerations that will factor into the Agency’s determination as to whether regulations under RCRA subtitle C or D is warranted.”

Comment: The three principles are appropriate for weighing the eight Bevill factors and ultimate decision under this proposal. However, the summarization of technical issues under this section needs to undergo a third party review. See Comment #1 for third party reviewers.

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill

Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06410

- 22 

### Organization 1 

### : Commenter 1 : Anonymous Commenter Type: Anonymous
Classif ication: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: New developments since the May 2000 determination need to undergo a thorough third party review. EPA is summarizing these findings on pg. 132 withou t referring to references from which these summarizes were formed. An audit report would be sufficient to summarize a decade of new developments highlighting main conclusions and quality of data (i.e., SAP and QAPP documenting collection of data). Weeding out inaccurate or unvalidated material before summarizing new changes would be most beneficial. Summarizing data prior to an audit has a great potential of communicating inaccurate information. I request that this summary of changes
be audited to ensure ac curate information, posted for public review, and all source information
be included in the docket.434

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Bevill

Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07796

- 1 

### Organization 1 

### : Commenter 1 : Emily M. Yandle Commenter Type: Private Citize n Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: [ATTACHMENT: See original comment for draft article that looks at the eight factors EPA is required to use when considering the regulation of CCRs under RCRA and evaluates how the EPA has examined the factors in the past and which current decision is most consistent with these prior analyses]

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Unit I V of today’s preamble for a discussion on our decision to regulate CCR under
subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill

Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08246

- 18 

### Organization 1 

### : St inson Morrison Hecker LLP on behalf of Kansas City Board of Public
Utilities 

### Commenter 1 : Parthenia B. Evans and Dennis Lane Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: BPU submits that the balance of public interest considerations in evaluating the eight factors favors retention of the Bevill exemption for CCRs. No compelling case has been made that
health or environmental risks have increased sin ce the 2000 Determination.

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Age ncy’s rationale for deferring a final Bevill

Determination.435



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08246

- 5 

### Organization 1 

### : Stinson Morrison Hecker LLP on behalf of Kansas City Board of Public
Utilities 

### Commenter 1 : Parthenia B. Evans and Dennis Lane Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: BALANCING THE EQUITIES UNDER THE BEVILL DECISIONAL FACTORS
FAVORS RETENTION OF THE BEVILL EXEMPTION

Turning to the eight study factors that must be weighed in determining whether the Bevill exemption should continue to apply, 75 FR at 35151 et seq ., on balance, these factors show improvement since the 2000 Determination.

Response: The Agency acknowledges and appreciates the comment. 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 and for a discussion on the Agency’s rationale for deferring a final Be vill

Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 9 

### 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:
Other Sections: 2.1.6 

### Comment Excerpt Text: B. Assuming, For Purposes Of Argument, That EPA Is Authorized To Make A Second Regulatory Determination, EPA Has Failed To Adhere To The Bevill Amendment’s Prescribed
Process

Even assuming that RCRA could be read as authorizing EPA to reverse its final Regulatory Determination for CCRs, the Agency would have to adhere to the statutorily prescribed procedures that Congress demanded EPA follow in determining whether and how to regulate CCRs. EPA itself has recognized this; in responding to Representative Markey‘s inquiry to EPA about the steps it would need to take to regulate CCRs under RCRA Subtitle C, the Agency stated that it would be “advisable [for EPA] to go through the s ame process we followed” in issuing the 1993 and 2000 final Regulatory Determinations. [Footnote 14: See Frank Letter, attached as Appendix 4.] Despite what it told Congress, EPA has inexplicably strayed beyond the plain language of the statute by proposin g to reverse its final Regulatory Determinations for436

CCRs without following the statutorily

- required process it followed for issuing those
Determinations in the first instance.

As explained above, the Bevill Amendment requires that, before making any fina l regulatory determination for CCRs, EPA first must study CCRs pursuant to the eight statutory study factors and then “publish a report on such study, which shall include appropriate findings.” RCRA § 8002(n). The statute then directs that “such study and findings [i.e., the Report to Congress] shall
be submitted to the Committee on Environment and Public Works of the United States Senate and the Committee on Energy and Commerce of the United States House of Representatives.” Id. Following submission of the report to the appropriate congressional committees, the statute directs EPA to conduct public hearings and provide an opportunity for comment on the Report to Congress, and either determine to promulgate regulations regulating CCRs under RCRA‘s
Subtitle C regulations or determine that such regulations are unwarranted. RCRA § 3001(b)(3)(C). Following this process, EPA was directed to publish its regulatory determination, “which shall be based on information developed or accumulated pursuant to such study, p ublic hearings, and comment, in the Federal Register accompanied by an explanation and justification of the reasons for it.” Id.

Despite these unambiguous statutory conditions for determining whether and how to regulate CCRs under RCRA, EPA has not compli ed with these conditions in proposing to reverse and reissue its final Regulatory Determination for CCRs. Among other things, EPA has not prepared a Report to Congress setting forth its rationale for proposing to reverse course and issuing a new regulatory determination declaring that CCRs now warrant Subtitle C regulation. This failure violates the express terms of the statute that any final regulatory determination be based on public hearings and comments on the Report to Congress. This requirement is not satisfied by the truncated and abbreviated review of the Bevill Amendment‘s statutory study factors presented by EPA in the instant proposal.

The language of the statute could not be clearer on this point: following submission of its Report to Congress, and after public hearings, and comment on the report, EPA was to publish its regulatory determination “which shall be based on information developed or accumulated pursuant to such study [i.e., EPA‘s Report to Congress], public hearings, and comment, in th e Federal Register accompanied by an explanation and justification of the reasons for it.” RCRA § 3001(b)(3)(C). The D.C. Circuit has confirmed that the statute unambiguously directs that the final regulatory determination is to be based on the Report to C ongress. EDF v. EPA, 852 F.2d at 1314 (“The statute clearly states that the agency is to base its regulatory determination on the information gathered for the § 8002(p) study”). [Footnote 15: The Section 8002(p) study refers to the EPA‘s Report to Congress on certain mining wastes that also were subject to the Bevill Amendment. Importantly though, the D.C. Circuit‘s decision is equally applicable to CCRs, as the statutory process for EPA issuing a final Regulatory Determination for mining wastes and
CCRs is identical. See RCRA § 3001(b)(3)(C) (referencing both the CCR § 8002(n) study and mining waste § 8002(p) study).] As the Supreme Court stated in Nat’l R.R. Passenger Corp. v. Nat’l Ass’n of R.R. Passengers (Amtrak), “[w]hen a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.” 414 U.S. 453, 458 (1974).

Thus, even assuming EPA was authorized to render a new and revised regulatory determination,437

such determination must be preceded and predicated on a new Repo rt to Congress. Even EPA has recognized that any final regulatory determination must be predicated on the Report to Congress. See 75 Fed. Reg. at 35151 (explaining that EPA addressed the Bevill statutory study factors for CCRs in the 1988 and 1999 Reports to Congress and “[t]he findings of these two Reports to Congress were the basis for our decisions in the August 1993 and May 2000 Regulatory Determinations to maintain the Bevill exemption for CCRs.”); see also 65 Fed. Reg. at 32219 (detailing how EPA‘s 20 00 final Regulatory Determination was based on public comments on the Agency‘s 1999 Report to Congress).

Representative Bevill underscored the point that the public hearing and comment process was intended to directly respond to EPA‘s Report to Congress a nd that any final regulatory determination was to be based on the information resulting from that process: “Finally, let me direct the House‘s attention to the fact that after EPA concludes these studies, it will be required to obtain public views on them and to make known whether, as a result of this process, EPA believes any regulation of these materials is necessary.” 126 Cong. Rec. at 3362 (emphasis added).

Here, of course, there is no Report to Congress recommending that CCRs be regulated under
RCRA S ubtitle C. This is especially egregious given that the Reports to Congress that EPA did provide to Congress made clear that CCRs do not warrant regulation under RCRA‘s Subtitle C hazardous waste program and that, therefore, EPA would not pursue this regula tory path. Now, more than ten years later, EPA is proposing to reverse that decision and issue a new regulatory determination for CCRs without explaining its reasoning to Congress as required by the statute, and without allowing for public comment and hear ings on the Report to Congress.

EPA may believe that its abbreviated review of the Bevill statutory factors in the proposed rule is the functional equivalent to preparing and submitting a Report to Congress, but the Agency‘s view is legally flawed for at least three reasons. First, as explained above, such a position would be at direct odds with the plain language of the statute, which unambiguously commands that any final regulatory determination be based on the Report to Congress. The statute simply does not authorize the type of fast

- track decision

- making process that EPA is attempting to employ under the Subtitle C option.

Second, the statute does not authorize the Agency to collapse the Bevill Amendment‘s statutory
decision

- making process into the mor e abbreviated exercise, which the Agency is undertaking here, by combining a proposed reversal of its earlier final Regulatory Determinations with the proposed development of Subtitle C regulations for CCRs. As EPA candidly admits, the end
result would be the issuance of a new regulatory determination calling for Subtitle C regulation along with the final Subtitle C regulations. This ignores the plain language and purpose of the Bevill Amendment which requires the regulatory determination to precede the pro mulgation of any subsequent regulations.

Looking again at the statutory text, RCRA Section 3001(b)(3)(C) provides that after issuing and obtaining public input on its Report to Congress, EPA was to “either determine to promulgate regulations” for CCRs und er RCRA Subtitle C “or determine that such regulations are unwarranted.” The Agency was then directed to publish its final determination in the Federal438

Register. Id. As the D.C. Circuit has explained, the text of the Bevill Amendment juxtaposes the
terms ? determination‘ and ?regulation,‘ . . .signifying that, consistent with the principle that effect must be given to each word of a statute, the two terms were intended to have distinct meanings.” Am. Portland Cement Alliance v. EPA, 101 F.3d 772, 775 (D.C. C ir. 1996) (“American Portland Cement”). Given this distinction, the sequence of actions directed by Section 3001(b)(3)(C) makes clear that the regulatory determination

– whether or not to regulate
CCRs under Subtitle C

– was to be a separate and distinct s tep from the subsequent promulgation of any such regulations.

This statutory step

- wise process is consistent with the Bevill Amendment‘s legislative history that EPA employ a more deliberative, sequential procedure than that traditionally applied to
other wastes under RCRA in determining whether and how EPA should regulate Bevill wastes in the first instance. See e.g., EDF v. EPA, 852 F.2d at 1314 (“Indeed, our reading of the statute and the legislative history strongly suggests that Congress designed the Bevill Amendment to break with the previous approach to regulation of hazardous industrial wastes.”). Under the Bevill Amendment, only after the regulatory determination has been issued does the statute contemplate EPA undertaking any appropriate rulemakin gs based on the determination. As the court explained in American Portland Cement:

Section 3001(b)(3)(C) provides the product of the notice and comment process [on the Report to Congress] will be a determination of whether regulation is warranted in the f uture, not regulations themselves. While Congress established a timetable for EPA‘s Regulatory Determination, it set no deadline for the promulgation of regulations that EPA might find necessary under § 3001(b)(3)(C). Accordingly, the notice and comment pr oceedings [on the Report to Congress] were aimed at informing EPA‘s decision at an intermediate rather than ultimate stage in the rulemaking process.

101 F.3d at 777.

Therefore, the accelerated decision

- making process contemplated in EPA‘s proposed Subti tle C option

– involving the simultaneous reversal and reissuance of the final Regulatory Determination for CCRs, coupled with the issuance of Subtitle C hazardous waste regulations for
CCRs

– is flatly inconsistent with the statute. Indeed, the public not ice and comment process on the Report to Congress is focused only on the appropriateness of EPA‘s evaluation of the Bevill Amendment‘s eight statutory study factors and EPA‘s recommendation in that Report on whether CCRs warrant regulation under Subtitle C . The notice and comment process on any subsequent rulemaking implementing a final regulatory determination necessarily involves a wholly separate set of legal and factual issues. Therefore, as the D.C. Circuit recognized, the
statute does not authorize EP A merging these two distinct agency actions into a single step. By attempting to merge the two separate agency actions together in the instant rulemaking, EPA has not clearly delineated its rationale for proposing to reverse and issue a new regulatory
dete rmination from the rationale underlying the proposed Subtitle C regulations. The result is a confusing and disjointed proposal that fails to comply with the sequential decision

- making and implementation process required by the statute. This is why Congress established a formalized step

- wise process for issuing the final regulatory determination and any subsequent regulations.439

Finally, EPA‘s failure to issue a new Report to Congress setting forth its reasoning on why it
now believes CCRs warrant hazardous w aste regulation

– after twice reaching just the opposite
conclusion

– deprives Congress of its statutorily prescribed right to be fully informed of any such recommendation. Congress required this so that it could evaluate and respond, as appropriate, to
th e Agency‘s proposed course of action before EPA makes a final Regulatory Determination and develops federal regulations. This is not a mere procedural formality. As Representative Bevill emphasized when introducing his amendment, it was especially critical that EPA not make the final regulatory determination in isolation, but that Congress and relevant federal agencies be
involved in the decision

- making process. 126 Cong. Rec. at 3362. The multi

- step decision

making process set forth in the Bevill Amendment , including the submission of a Report to Congress, was specifically designed to enable Congress and other federal agencies to “evaluate the basis of the Agency‘s decision, and to address the question of what degree of regulation, if any, is appropriate [e mphasis added]” and ultimately to ensure that the final regulatory determination was consistent with the nation‘s “commitment to develop a coherent and consistent policy toward the use of our coal and other energy resources.” Id. This multi

- stake holder pr ocess reflects Congress‘ intent that it, along with other informed federal agencies and not EPA in isolation, are responsible for striking the delicate balance between the nation‘s environmental and energy goals.

Indeed, a key purpose of Congress requirin g EPA to submit its Report to Congress was to ensure that any final regulatory determination appropriately reflect Congress‘ intentions that any regulation of CCRs not discourage the development of coal as one of the national primary sources of energy. Thi s is precisely the type of oversight role that Congress reserves for itself when requiring agencies to submit reports to Congress prior to taking regulatory action. See Natural Res. Def. Council, Inc. v. Hodel, 865 F.2d 288, 319 (D.C. Cir. 1988) (“NRDC v. Hodel”) (in explaining Congress‘ ability to respond to an agency report that is required to be submitted to Congress, the Court observed that “[i]t scarcely bears more than passing mention that the most representative branch is not powerless to vindicate i ts interests or ensure Executive fidelity to Legislative directives.”).[Footnote 16: See also generally James R. Bowers, “Regulating the Regulators” (1990); Joel D. Aberbach, “Keeping a Watchful Eye: The Politics of Congressional Oversight 132” (1990). For example, Congress can control agency action by writing more detailed legislation, by requiring staff investigations or field studies, or through agency reports required by Congress. See also United States v. S. Ind. Gas & Elec. Co., 2002
U.S. Dist. LEXIS 20936 at *14 (S.D. Ind. Oct. 24, 2002) (noting that the purpose of Congress requesting an agency to report on a new rule was “was to provide a check on administrative agencies‘ power to set policies and essentially legislate without Congressional oversight .”).] In this case, EPA‘s failure to prepare a Report to Congress regarding its proposal to regulate CCRs under RCRA‘s hazardous waste program has eviscerated the statutory oversight role provided to Congress in the Bevill Amendment‘s decision

- making proce ss for CCRs.

For these reasons, even assuming EPA had the authority to revisit and reverse its previous, final Regulatory Determination for CCRs, the Agency‘s proposed Subtitle C option does not comport with the statutory process that Congress imposed on EPA in determining whether and how to regulate CCRs under RCRA Subtitle C. At a minimum, EPA must conduct thorough studies demonstrating a clear need for regulation; provide to Congress a report detailing its findings on those studies; conduct public heari ngs and solicit comments on the new Report to Congress; and440

finally base any final regulatory determination on the new Report to Congress. Congress did not painstakingly craft such mechanisms into the statute for its own amusement and EPA is not at liberty to ignore such clear congressional directions.

Response: The Agency acknowledges and appreciates the comment. 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 and for a d iscussion on the Agency’s rationale for deferring a final Bevill Determination. In that, the Agency is deferring a final Bevill Determination, comments made on the statutory procedures by which a Bevill Determination is to be made are outside the scope of this rulemaking at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0199

- 2 

### Organization 1 

### : Portland Cement Association (PCA) 

### Commenter 1 : Robert Hirsch Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.2.2 10.4.3 2.2.8 2.1.3 4.1.1 

### Comment Excerpt Text: The following summarizes the specific issues we address in these comments:

- PCA’s comments in response to the NODA, including the detailed additional e xamples of stigma that we provide herein, focus on and are in direct response to specific documents, i.e., the Fortuna analysis (EPA

- HQ

- RCRA

- 2011

- 0392

- 0026) and the comments submitted by the Joint Advocates (EPA

- HQ

- RCRA

- 2011

- 0329

- 0119), that EPA has made a subject of this NODA.

- Former Administrator Browner’s sensitivity to avoid needlessly creating a stigma and instead regulate initially under subtitle D was, and still is sound policy: “If this conclusion [regulating under subtitle D] turns out not to be warranted, we would be inclined to re

- examine our current decision.”

- Since submitting our initial comments, PCA has learned of a number of additional examples of stigma involving coal combustion residuals (CCRs) and the reuse of CCRs for beneficial

pur poses, which discredit and rebut the claims by the Joint Advocates and Fortuna that regulating CCRs under subtitle C will not stigmatize CCRs used for beneficial purposes.

- EPA’s Final Plan for conducting periodic retrospective reviews of existing regula tions lends strong support for regulating CCRs under subtitle D and not under subtitle C.

- The results of a recent sociological study conducted by the University of New Hampshire corroborate the validity of industry’s concerns that CCRs used for benefici al purposes can be, and are being, stigmatized by the array of negative information being published and disseminated by the advocates of the subtitle C option, and by others, and that such information is fostering and reinforcing the public’s opposition to beneficial uses of CCRs generally and, in particular,441

belief that products containing CCRs should be avoided whenever possible.

- A recent article published by, and for, the property and casualty sector of insurance industry, calling CCRs the “next asbes tos,” provides good and reliable evidence that CCRs have already been stigmatized.

- Comments submitted to this docket by opponents of the subtitle D options provide an excellent demonstration of the efforts taking place to smear and ultimately stigmatize CCRs and the reuse and recycling of CCRs.

- The campaign against the use of CCRs for sandblasting and roofing shingles provides a good example of how negative advertising is already being used and re

- circulated in order to stigmatize products whose ingre dients include CCRs.

- EPA should not treat a stigma report prepared for the leading opponents to the subtitle D option as “expert opinion” and/or give the report’s analysis and conclusions deference and/or preference over the stigma concerns and comments supporting stigma submitted by industry and others.

- EPA is required by law to consider the stigma effect that regulating CCRs under RCRA subtitle C would, or might, have on the current and future beneficial use of CCRs.

- Opponents of the subtitle D o ptions have not demonstrated that the stigma concerns that have been presented to EPA are fallacious.

- Industry, state governments, and others have demonstrated in comments and with examples that the stigmatization of CCRs reuse has already begun to occu r.

- Individual members of the U.S. Green Building Council’s (USGBC) “knowledgeable panel of professionals” have posted advice and recommendations on the USGBC website which are effectively lending unwarranted credence to the negative information and stig ma being promoted
about CCR reuses.

- Opponents of the subtitle D options have presented erroneous legal arguments regarding the Bevill factors and their irrelevancy to EPA’s final decision in this rulemaking.

- Opponents of the subtitle D options have e ffectively conceded that the potential for CCRs and their reuses to be stigmatized does exist.

- Claims that the courts disfavor stigma arguments have no merits.

- Opponents of the subtitle D options are engaging in a smear campaign that includes the
wid espread dissemination of false and misleading information, innuendo, and the raising of specious issues, all carefully crafted to inflame the public and instill public fear of CCRs and virtually all reuses of CCRs.

- Opponents of the subtitle D options er roneously and disingenuously argue that if a particular442

reuse of CCRs might be “dangerous” it cannot be “beneficial.”

- Opponents of the subtitle D options have sought to demonize all unencapsulated uses of CCRs, and do so without any consideration of whe ther appropriate control measures could be put into place or if a particular use is minimal.

- Opponents of the subtitle D options have cited research results for erroneous propositions and/or out of context in order to promote public fear of, and opposit ion to, encapsulated reuses of CCRs generally.

- Opponents of the subtitle D options have cited examples of “miscellaneous” reuses of CCRs that they know, or at the very least should know, are not relevant to this rulemaking, in order to stimulate public doubt and fear about CCR recycling and reuse and thus foster public opposition
to the use of coal as an industrial fuel source.

- The negative comments and advocacy tactics being used by opponents of the subtitle D options
will be a direct cause of the de crease in the reuse and recycling of CCRs that will occur in the event CCRs are regulated under subpart C.

- The public education program that opponents of the subtitle D options advocate will be incapable of overcoming the stigma and fear of CCR reuses t hat those opponents have already generated and are continuing to promote.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0199

- 8 

### Organization 1 

### : Portland Cement Association (PCA) 

### Commenter 1 : Robert Hirsch Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.4.3 2.2.8 2.1.3 

### Comment Excerpt Text: B. Comments submitted to the docket present erroneous legal argum ents regarding the Bevill factors and their relevancy to EPA’s final decision in this rulemaking. In comments submitted by Joint Advocates (EarthJustice, Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, and Physicians for Social Responsibility) the following claims have been made: “While the Bevill factors arguably require EPA at least to consider stigma, the Bevill factors do not govern EPA’s
final decisi on on its proposed rule,” EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 122 (previously EPA

HQ

- RCRA

- 2009

- 0640

- 10495.1 at 122), and that, “[e]ven if the stigma concerns raised by industry were legitimate . . . they would not provide a valid basis for declining to regulate coal ash under RCRA Subtitle C.” Id. The Joint Advocates further assert, as Fortuna did in his443

analysis: “The D.C. Circuit’s decision in Hazardous Waste Treatment Council v. U.S.E.P.A. is directly on point.” EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 123 (previously EP A

- HQ

- RCRA

- 2009

- 0640

- 10495.1 at 123). PCA disagrees.

The above

- quoted claims present the Joint Advocates’ legal assertions relating to the scope and manner of EPA’s rulemaking authority under the Bevill Amendment. As such, if these assertions
are correct, they would control whether, when, and how, the issue of stigma and, in particular, the presentations of factual examples of stigma, can be considered by EPA in the course of this rulemaking. Under the Joint Advocates’ theory, industry’s factual presentatio ns of examples of stigma would have no relevancy to EPA’s decision to adopt the subtitle C option, because “the Bevill factors do not govern EPA’s final decision on its proposed rule,” EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 122 (previously EPA

- HQ

- RCRA

- 2009

- 0640

- 104 95.1 at 122). While PCA disagrees with the Joint Advocates, if it is assumed they are correct for sake of argument, it must also be assumed that the Joint Advocates would have presented this legal argument at the beginning of their comments addressing stig ma, because the existence of such clear

- cut legal restrictions on EPA’s authority would supersede EPA’s consideration of stigma and other matters of fact and would have avoided any need for EPA, or the Joint Advocates, to address stigma at all. Clearly tha t would be the logical and most expedient thing to do. Thus, if HWTC applies and is as “directly on point” as they claim, the Joint Advocates would only have needed a few paragraphs, or perhaps only a footnote, to dispose of the stigma issue and EPA’s

cons ideration of stigma.

The Joint Advocates did not present their legal argument upfront, however. In fact, their legal arguments do not even begin until page 122 of their comments, i.e., 11 pages into their comments’ discussion of stigma.

Moreover, the Joi nt Advocates discussion of stigma in their comments was not limited to just a few paragraphs, or a footnote. Rather, the Joint Advocates’ initial, as well as their primary, focus on stigma deals with matters involving facts. Beginning on page 111 of their comments, and ending on page 153, they present a lengthy dissertation on why industry’s claims are, among things, “speculative,” EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 114 (previously EPA

- HQ

- RCRA

2009

- 0640

- 10495.1 at 114), and amount to nothing more than industry’s presentation of “alarmist stigma arguments” that should not be given credence. EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 127 (previously EPA

- HQ

- RCRA

- 2009

- 0640

- 10495.1 at 127).

PCA believes it is significant that the Joint Advocates felt it was necessary to devote mo re than 41 pages of their comments to the issue of stigma, when, according to their legal theory, virtually all of that discussion should have been superfluous. It is also significant that the Joint Advocates felt the need to commission and pay Fortuna to prepare his stigma report, which they appended to their comments as Appendix N. Clearly, the Joint Advocates’ actions speak much louder than their words. Clearly too, the Joint Advocates demonstrate they have no confidence in the merits
and correctness of their legal argument. As we explain below, they have good reason.

Earlier in these NODA comments we demonstrated that the DC Circuit’s decision in HWTC is neither on point nor relevant to this rulemaking. PCA does not feel it is necessary to repeat that
d iscussion here and we therefore refer EPA back to pages 9

- 11 of these NODA comments, supra.444

However, PCA will address here another legal argument that was also raised in the Joint Advocates’ comments, which is based on their flawed interpretation of the B evill Amendment and its interplay with 42 U.S.C. § 6921. According to the Joint Advocates:

While EPA must determine whether to promulgate regulations based on consideration of the Bevill factors, once it has made the decision to regulate, the ordinary lis ting factors apply. This makes sense. Once EPA has found that regulation of coal ash is warranted, it would defeat RCRA’s overarching purpose to regulate coal ash less protectively than the statute and implementing regulations require. Because none of the relevant provisions of the Bevill Amendment requires EPA to list coal combustion waste pursuant to the Bevill study factors, EPA must make a final listing decision based on the regulatory listing criteria, which do not include stigma or even encouragement of reuse as a factor.

EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 124 (previously EPA

- HQ

- RCRA

- 2009

- 0640

- 10495.1 at 124).

Based on the Joint Advocates’ theory, five out of the eight individual Bevill factors would be rendered nugatory and, as a result, EPA’s considerat ion of those factors would be superfluous.

- Factor 1: “the source and volumes of such materials generated each year;”

- Factor 5: “alternatives to current disposal;”

- Factor 6: “the cost of such alternatives;”

- Factor 7: “the impact of those alternativ es on the use of coal and other natural resources;”

- Factor 8: “the current and potential utilization of such materials.”

According to the Joint Advocates’ statutory analysis, therefore, while acknowledging the
obvious fact that the Bevill Amendment dire cts EPA to analyze such factors, they essentially argue that none of these five factors is relevant to EPA’s regulatory decision, because “the Bevill factors do not govern EPA’s final decision on its proposed rule.” EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 122 (previ ously EPA

- HQ

- RCRA

- 2009

- 0640

- 10495.1 at 122).

In other words, the Joint Advocates argue that the Bevill Amendment imposed what amounts to
an “all

- or

- nothing” scheme for regulating Bevill wastes. Under this theory, if CCRs need to be regulated, they must be regulated under subtitle C, or they cannot be regulated at all. Therefore, according to their theory, if, after considering the Bevill factors, EPA determines that CCRs should not be regulated under subtitle C, EPA would be prohibited from regulating CCRs under RCRA subtitle D, because “the Bevill factors do not govern EPA’s final decision on its proposed
rule.” EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 122 (previously EPA

- HQ

- RCRA

- 2009

- 0640

- 10495.1 at 122).

To put this into perspective, under the Joint Advocates’ the ory, if EPA determines that the unregulated disposal of CCRs poses a potential danger to human health and the environment (Bevill factor 3), but also determines that CCRs should not be regulated under subtitle C, because doing so would reduce current and p otential future reuse and recycling of CCRs (Bevill factors 7 and 8) and increase landfill disposal, EPA could not regulate CCRs under subtitle D,445

even if the risk to public health and the environment could be appropriately addressed under subtitle D, and the amount of CCRs being disposed of in landfills would be significantly decreased. The Joint Advocates’ “all

- or

- nothing” construction of the statute is nonsensical. It would be extremely short

- sighted, and arbitrary, for EPA to adopt the Joint Advocates’ “all

- or

nothing” theory.

At a minimum, if the Joint Advocates’ statutory construction were adopted by EPA, the Agency’s analysis of at least five of the eight Bevill factors would be rendered effectively meaningless, because regardless of what information were developed under those factors, the information would have no bearing on EPA’s final regulatory decision. The Joint Advocates’ construction ignores a long line of Supreme Court decisions. As the Supreme Court opined in Duncan v. Walker, 533 U. S. 167, 174 (2001), for example: “It is 'cardinal principle of statutory construction’ that 'a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant." See, also Un ited States v. Menasche, 348 U. S. 528, 538

- 539 (1955) (“It is our duty to give effect, if possible, to every clause and word of a statute [citation omitted] rather than to emasculate an entire section."); Montclair v. Ramsdell, 107 U. S. 147, 152 (1883) ( "It is the duty of the court to give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed.”).

The 2000 Bevill determ ination that Administrator Browner issued makes it quite clear that EPA is well aware of this basic canon of statutory construction. It is also abundantly clear from the 2000 determination that the Agency has rejected the Joint Advocates’ “all

- or

- nothing” reading of the statute. Below we quote a number of statements from Administrator Browner’s 2000 determination that speaks directly to the statutory construction that the Joint Advocates have advanced in their comments. Her statements support PCA’s reading of the statute and make it abundantly clear that the Joint Advocates’ interpretation of the statutory is wrong:

"Today’s decision was, in the Agency’s view, a difficult one, given the many competing considerations discussed throughout today’s notice. Afte r considering all of the factors specified in RCRA section 8002(n), we have decided as discussed further below, that the decisive factors are the trends in present disposal and utilization practices (section 8002 (n)(2)), the current and potential utilizat ion of the wastes (Section 8002 (n)(8), and the admonition against duplication of efforts by other federal and state agencies."

65 Fed. Reg. at 32215.

"We believe, however, for the reasons described below, the better approach at this time to ensuring ade quate management of FFC wastes is to develop national regulations under subtitle D rather than subtitle C. EPA has reached this conclusion in large part based on consideration of “present disposal and utilization practices.” RCRA § 8002(n)."

65 Fed. Reg. at 32216.

EPA’s 2000 determination further makes clear that, in selecting which subtitle of RCRA CCRs should be regulated under, the factor of stigma does indeed provide a valid basis for EPA to446

decline to regulate CCRs under RCRA subtitle C. The followin g statement from Administrator Browner’s 2000 determination demonstrates this clearly, and unequivocally:

"We also see a potential downside to pursuing a subtitle C approach. Section 8002(n)(8) directs us to consider, among other factors, “the current and potential utilization of such materials.’’ Industry commenters have indicated that they believe subjecting any coal combustion wastes to a subtitle C regime would place a significant stigma on these wastes, the most important effect being that it would ad versely impact beneficial reuse. As we understand it, the concern is that, even though beneficially reused waste would not be hazardous under the contemplated subtitle C approach, the link to subtitle C would nonetheless tend to discourage purchase
and re

- use of the waste. We do not wish to place any unnecessary barriers on the beneficial uses of these wastes, because they conserve natural resources, reduce disposal costs and reduce the total amount of waste destined for disposal. [Emphasis supplied] States and industry have also expressed concern that regulation under subtitle C could cause a halt in the use of coal combustion wastes to reclaim abandoned and active mine sites. We recognize that when done properly, minefilling can lead to substantial environ mental benefits. EPA believes the contingent management scheme we discussed should diminish any stigma that might be associated with the subtitle C link. Nonetheless, we acknowledge the possibility that the approach could have unintended consequences. We w ould be particularly concerned about any
adverse effect on the beneficial re

- use market for these wastes because more than 23 percent (approximately 28 million tons) of the total coal combustion waste generated each year is beneficially reused and an addit ional eight percent (nine million tons) is used for minefilling. EPA believes that such reuse when performed properly, is by far the environmentally preferable destination for these wastes, including when minefilled. Normally, concerns about stigma are

not a deciding factor in EPA's decisions under RCRA, given the central concern under the statute for protection of human health and the environment. However, given our conclusion that the subtitle D approach here should be fully effective in protecting human health and the environment, and given the large and salutary role that beneficial reuse plays for this waste, concern over stigma is a factor supporting our decision today that subtitle C regulation is unwarranted in light of our decision to pursue a subti tle D approach. [Emphasis supplied]

Additionally, in a 1993 regulatory determination, EPA previously addressed large volume coal combustion wastes generated at electric utility and independent power producing facilities that manage the wastes separately f rom certain other low volume and uniquely associated coal combustion wastes (see 58 FR 42466; August 9, 1993). Our 1993 regulatory determination maintained the exemption of these large volume coal combustion wastes from being regulated as
hazardous wastes when managed separately from other wastes (e.g., in monofills). We intend that the national subtitle D regulations we develop for the coal combustion wastes subject to today’s regulatory determination will also be applicable to the wastes covered in the 19 93 regulatory determination for the reasons listed below, so that all coal combustion wastes are consistently regulated for placement in landfills, surface impoundments, and minefills.

- The co

- managed coal combustion wastes that we studied extensively in making today’s regulatory determination derive their characteristics largely from these large

- volume wastes and
not from the other wastes that are co

- managed with them.447

- We believe that the risks posed by the co

- managed coal combustion wastes result pri ncipally from the large

- volume wastes.

- These large

- volume coal combustion wastes, account for over 20% of coal combustion wastes.

As we proceed with regulation development, we will also take enforcement action under RCRA section 7003 when we identify c ases of imminent and substantial endangerment. We will also use Superfund remedial and emergency response authorities under the Comprehensive Environmental Response Compensation and Liabilities Act (CERCLA), as appropriate, to address damages that result i n risk to human health and the environment.

However, as stated above, this decision was a difficult one and EPA believes that, absent our conclusions regarding the current trends in management of this waste, the waste might present sufficient potential th reat to human health and the environment to justify subtitle C regulation. There are several factors that might cause us to rethink our current determination. First, and perhaps most importantly, if current trends toward protective management do not contin ue, EPA may well determine that subtitle C regulation is warranted for this waste. As we have stated, we do not believe the current gaps in the basic controls are acceptable, and our determination that subtitle C regulation is not warranted is premised to a large extent on our conclusion that subtitle D regulation will be sufficient to close these gaps. If this conclusion turns out not to be warranted, we would be inclined to re

- examine our current decision."

65 Fed. Reg. at 32217

- 18.

In short, the follow ing two conclusions regarding the applicability and application of the Bevill Amendment must be drawn from Administrator Browner’s 2000 determination. First, that the Bevill factors apply to the entirety of EPA’s regulatory decision regarding CCRs and not just to EPA’s determination whether CCRs should be regulated. Therefore, contrary to what the Joint Advocates’ comments contend, EPA’s application of the Bevill factors in this rulemaking should not be limited solely to the Agency’s decision whether to reg ulate to CCRs but also extends to EPA’s determination of how CCRs are listed, i.e., whether CCRs should be regulated under RCRA subtitle C or subtitle D. [Footnote 22: The Joint Advocates ignore the statutory construction the Agency adopted under former Ad ministrator Browner. They instead assert, albeit erroneously: “Even if the stigma concerns raised by industry were legitimate

– which they

are not

– they would not provide a valid basis for declining to regulate coal ash under RCRA Subtitle C.” EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 122 (previously EPA

- HQ

- RCRA

- 2009

- 0640

- 10495.1 at 122).] Second, Administrator Browner’s 2000 determination also made abundantly clear that the factor of stigma can indeed influence EPA’s decision whether to CCRs should be regulated under RCRA subtitle C or subtitle D. Based on Administrator Browner’s 2000 determination, if regulating CCRs under subtitle C could, in fact, cause a stigma, the existence of that possibility will suffice to provide EPA with a valid basis to decline to regulate CCRs under
subtitle C.

Accordingly, and contrary to the comments submitted by the Joint Advocates, the examples of stigma that industry provides bear directly upon EPA’s decision whether it would be better to448

regulate CCRs under RCRA subtitle D, i.e., to decline to regulate them under subtitle C. Although PCA provided a number of examples of stigma in its original comments, because of the comments submitted by the Joint Advocates, and by Fortuna, we feel a need to submit additional examples of stigma that we learned of since submitting our original set of comments.

As further rebuttal to the comments of the Joint Advocates and also Fortuna, PCA provides a detailed discussion of additional examples of stigma in Section E of these NODA comments,
below.

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.

Section 2.2.1

- Source and volumes of CCRs generated per year Total Number of Submissions: 3 Total Number of Comments: 7



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 14 

### 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: 2.2.2 2.2.3 2.2.4 2.2.5 2.2.6 2.2.7 2.2.8 

### Comment Excerpt Text: In this section of our comments, each factor of section 8002(n) is evaluated in light of the considerable evidence and recent data that have come to light since EPA’s 2000 Final Determination. [ ICF COMMENT ANALYSIS NOTE: for SECTION III. A, which starts page 12 of original comment #6315.1 through SECTION III. H, which end s on page 153 of original
comment #10495.1

-- each evaluates one of the eight Befill factors; those comments are usually coded to relevant issues within the issue outline instead of directly to 2.2.1 through 2.2.8 ] In section 8002(n), Congress instructed E PA to examine a wide range of factors: volume of coal ash; current disposal and use; potential danger from mismanagement, documented cases of proven threats to health and the environment, alternatives to current disposal, the cost of such alternatives, the impact of regulation on the use of coal and other resources, and current and potential reuse of coal ash. Reexamination of all eight study factors reveals that regulation of CCRs under RCRA subtitle C of RCRA is clearly warranted.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 15 

### Organization 1 

### : Earthjustice et. al.449



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



### Comment Excerpt Text: A. Analysis of “The Source and Volumes of Coal Ash Generated Per Year” Underscored the Need for Subtitle C Regulation

EPA’s analysis of “the source and volumes of coal ash generated per year” must consid er heightened risks from the substantial increase in volume of CCRs. As EPA points out in the preamble, the volume of CCR has increased substantially over the last two decades. [Footnote
45: Id. at 35,151.] The total estimated generation of CCR in the 1999 Report to Congress is about 25 percent smaller than the total tonnage of CCR estimated in EPA’s 2009 Regulatory Impact Analysis, reflecting an increase of over 35 million tons of annual waste ge neration. As EPA acknowledges, the 1988 and 1999 Reports to Congress were based on a much smaller volume of CCRs. [Footnote 46: Id. ] In fact, when Congress passed the Bevill Amendment in 1980, the total amount of coal ash generated (65,933,000 tons) compri sed a volume 47 percent smaller than current generation (141,000,000 tons). [Footnote 47: ICF Resource, Inc., Coal Combustion Waste Management Study , (Docket ID No.: EPA

- HQ

- 2006

- 0796 7 (prepared for U.S. Dep’t of Energy) (Feb. 1993).] With the much larger volume of CCR comes a commensurate increase in the risk of harm posed by mismanagement. Larger volumes and higher total disposal costs have led some generators to dump their waste in increasingly risky ways, including in sham reuse projects, [Footnote 48: 75 Fed. Reg. at 35,147 (citing the BBBS Sand and Gravel Quarries in Gambrills, Maryland).] in aging, leaking, and unstable impoundments and landfills, and in active
and abandoned mines.

1. EPA Predicts Future Increases in Coal Ash Generation.

According t o EPA, increasing coal use for electricity generation at existing plants and
construction of a few new coal

- fired plants will lead to modest annual production increases that average 1.1 percent per year from 2005 to 2015. [Footnote 49: EPA, Materials Chara cterization Paper In Support of the Proposed Rulemaking

– Identification of Nonhazardous Secondary Materials That Are Solid Waste Coal Refuse 3 (Mar. 18, 2010).] As more coal is burned in coal

fired power plants, there is a commensurate increase in CCRs at the rate of 10

– 20% of the total amount of coal burned. The Energy Information Adminsistration (EIA) forecasts a 1.8% growth in coal production from 2015 to 2030. While this forecast is likely overstated, given that it
assumes additions of coal

- fired gener ating capacity and several coal

- to

- liquids (CTL) plants,
EPA must assume that coal

- fired power plants will continue to generate high volumes of waste for the foreseeable future. [Footnote 50: U.S. Dep’t of Energy, Energy Information Administration (EIA), A nnual Energy Outlook 2007 with Projections to 2030 (Publication DOE/EIA

- 0383) (Feb. 2007).]

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

mandated emission controls. In response to current and proposed requirem ents, additional NOx450

control and flue gas desulfurization (FGD) systems for SO2 control will be more widely used. The installation of scrubbers will result in significant increases in the production of FGD sludge. Some estimates project a doubling or tripl ing of the number of wet scrubbers as a result of implementation of the Clean Air Interstate Rule (CAIR). [Footnote 51: EPA, Characterization of Coal Combustion Residues from Electric Utilities

– Leaching and Characterization Data (EPA

600/R

- 09/151), at 7 (Dec. 2009).] According to EPA, over half of the U.S. coal

- fired capacity is projected to be equipped with SCR and/or FGD technology by 2020. [Footnote 52: Id. ] In fact, many coal plants across the country are in the process of installing new scrubber syst ems, and EPA predicts a 16% increase in scrubbed units between 2009 and 2015 alone. [Footnote 53: EPA, Steam Electric Power Generating Point Source Category: Final Detailed Study Report 4

- 1

- 4

- 6 (2009).] The increase in scrubber sludge and increased coal bu rning is estimated to raise the total CCR generated to 175 million tons by 2015. [Footnote 54: Memorandum from EPA, Clean Air Markets Division, to the Docket, entitled “Economic and Energy Analysis for the Proposed Interstate Air Quality Rulemaking” (Jan. 28, 2004).]

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

Larger volumes of coal combustion wastes translates into increased risks associated with disposal, including increased numbers of dangerous hazardous waste dumps, increased volume of toxics released to the environment, and increasingly widespread disposal in states where there is no effective regulation.

a. New EPA Data on CCR Surface Impoundments Reveal a Far Greater Number of Units than Previously Known.

Accord ing to the 1999 Report to Congress, EPA estimated that there were approximately 600 active CCR disposal units in total, including about 300 landfills and 300 surface impoundments. [Footnote 55: 1999 Report to Congress v. 2 , at 3

- 21.] Following the catastro phic collapse of the coal ash dam at TVA’s Kingston Fossil Plant in December 2008, EPA realized that it had to obtain much more information on the universe of operating coal ash ponds. In response to that need, EPA sent industry

- wide Information Collection Requests (ICRs) in March, April and December of 2009. Based on the ICR responses, EPA now has much more detailed and accurate information regarding the inventory of surface impoundments operated by the nation’s electric utilities. The Agency, in fact, rec eived data on 629 surface impoundments.

The doubling of the estimated number of impoundments is not inconsequential. While the 1999 Report to Congress assumed a 40

- year operating life for CCR management units, it is clear from the new surface impoundment data that utilities are routinely employing disposal units for far longer than four decades. [Footnote 56: Id. at 3

- 66.] Sixty

- four percent of the operating CCR surface impoundments (over 400 ponds) were built in the 1970s or earlier. [Footnote 57: EPA,
In formation Request Responses from Electric Utilities, Database of Survey Responses, available at: http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys.htm.] The total surface area occupied by these waste ponds exceeds 31,000 acres

— an area over tw ice the size of Manhattan. These ponds have the capacity to store more than 37.6 billion cubic feet of coal ash, enough ash to flow over Niagara Falls for more than four days straight.451

Unfortunately, EPA did not send ICRs to utilities for information on l andfills. Consequently, EPA is unable to estimate with accuracy the number of currently operating on

- site and off

- site CCR landfills. The Regulatory Impact Analysis contains an estimate similar to EPA’s 1999 figure, of slightly over 300 units. However, in view of EPA’s gross underestimate of the number of surface impoundments, one can expect that this figure similarly undercounts the total number of landfills operating today.

b. According to the Toxic Release Inventory (TRI), the Volume of Hazardous Chemic als in Coal Ash Is Presently Enormous and Accumulating Rapidly in CCR Surface Impoundments and Landfills.

According to EPA’s Toxic Release Inventory (TRI), the volume of hazardous chemicals in coal ash is presently enormous and accumulating rapidly in CCR surface impoundments and landfills. The disastrous spill of toxic coal ash from TVA’s Kingston plant dramatized how unsafe disposal practices can damage the environment and threaten the health of residents downstream. According to data reported by the ind ustry to the TRI, power plants dump millions of pounds of toxic metals that are contained in coal ash into wet surface impoundments like the TVA pond that breached every year. Based on EPA’s analysis, approximately 74 percent of these impoundments are unli ned and over 400 are over 30 years old, increasing the risk that toxic pollutants such as arsenic and lead will leach into groundwater or nearby rivers and streams. [Footnote 58: 65 Fed. Reg. at 32,214, 32216 (reporting that 26% of all surface impoundments have liners).]

Among many other metals, arsenic, chromium, lead, nickel, selenium, and thallium are present in coal ash. These metals are prone to leaching from ash into the environment and can be highly toxic at minute levels to either humans or aquatic life, or both. [Footnote 59: See Nat’l Research Council, Nat’l Academies, Managing Coal Combustion Residues in Mines 81

– 104 (2006),
available at http://books.nap.edu/catalog.php?record_id=11592#toc.] Between 2000 and 2009, the power industry reported disp osal of coal ash containing more than 164 million pounds of these six toxic pollutants into surface impoundments. [Footnote 60: See Attachment 1, Electric Utility Industry Disposal of Arsenic, Chromium, Lead, Nickel, Selenium, and Thallium in Surface Impou ndments and Landfills.] Each year, the power industry reports disposing well over 10,000 pounds of these metals into surface impoundments. [Footnote 61: Id. ]

In addition to disposal in wet ponds such as the Kingston impoundment, the power industry reporte d dumping approximately 215 million pounds of arsenic, chromium, lead, nickel, selenium, and thallium into landfills and other land disposal systems between 2000 and 2009. [Footnote 62: See Nat’l Research Council, Nat’l Academies, Managing Coal Combustion
Residues in Mines 81

– 104 (2006), available at http://books.nap.edu/catalog.php?record_id=11592#toc.] Although not as dramatic as the Kingston spill, slow motion leaks from so

- called “dry” landfills have contaminated groundwater
and surface water across the United States. [Footnote 63: See EPA, Coal Combustion Waste Damage Case Assessments (July 9, 2007) [hereinafter 2007 EPA Damage Case Assessment ]; Env. Integrity Project & Earthjustice, Out of Control: Mounting Damages From Coal Ash Waste
Sites (Feb. 24, 2 010) (Jeff Stant, ed.) [hereinafter Out of Control ], available at http://www.environmentalintegrity.org/news_reports/documents/OutofControl

-452

MountingDamagesFromCoalAshWasteSites.pdf; Env. Integrity Project, Earthjustice, & Sierra Club, In Harm’s Way: Lack o f Federal Coal Ash Regulations Endangers Americans and Their
Environment 132

– 143 (Aug. 26, 2010) (Jeff Stant, ed.) [hereinafter In Harm’s Way ], available at http://www.environmentalintegrity.org/news_reports/documents/INHARMSWAY_FINAL3.pdf (documenting

num erous coal combustion waste landfills that have contaminated ground and surface waters via direct discharges and leaks in disposal units).] In total, the power industry was responsible for dumping over 379 million pounds of these six toxic pollutants into surface impoundments, landfills, and other land disposal systems between 2000 and 2009 alone. [Footnote 64: See Attachment 1, Electric Utility Industry Disposal of Arsenic, Chromium, Lead, Nickel, Selenium, and Thallium in Surface Impoundments and Landfill s. During this same time period, the power industry reported recycling just 6,584,989 pounds of metals and metal compounds

— significantly less than many other industries. Attachment 2, U.S. Envtl. Prot. Agency, TRI Transfers Off

- Site for Further Waste Manag ement (in pounds), for Metal and Metal Compounds, By Industry (2009), available

at http://www.epa.gov/triexplorer/industry.htm.] Due to the lack of federal regulations establishing minimum safeguards, much of this pollution eventually makes its way into ou r drinking water sources, rivers, lakes, and streams.

These numbers are just the tip of the iceberg. Although disposal of these six pollutants has gradually decreased over the past ten years, coal

- fired generation has also declined from 1,966,265 megawatt hours in 2000 to 1,764,486 megawatt hours in 2009. [Footnote 65: Energy Info. Admin., Dep’t of Energy, Electric Power Monthly, tbl. 1.1 (Oct. 14, 2010), available at http://www.eia.doe.gov/cneaf/electricity/epm/epm_sum.html.] When coal

- fired generation
in creases, the amount of coal combustion waste, and the toxic pollutants contained in this waste, will also increase. Furthermore, our analysis includes just ten years of data and only six of the twenty

- seven metals commonly found in coal combustion waste.

Attachment 3 identifies those plants that report disposing of the largest volumes of each pollutant between 2000 and 2009 to surface impoundments. At many plants, the amounts dumped into surface impoundments significantly exceed the disposal volumes at the Kingston facility. The data suggest that many communities are at risk, whether from sudden spills or the slow leaching of toxic pollutants from coal ash into the surrounding environment. Consider, for example:

- Arsenic. EPA samples measured arsenic leve ls far above drinking water standards in nearby waterways after the spill from Kingston’s surface impoundment. [Footnote 66: Appalachian Voices, Results of ICP

- OES Analyses of the TVA Ash Spill Samples Collected 12

- 27

- 08 from the Emory River, 1, available at http://www.appvoices.org/resources/Preliminary_TVA_Ash_Spill_Sample_Data_AppVoices_D ecember% 202008.pdf; and Shaila Dewan, Metal Levels Found High in Tributary After Spill,
N.Y. Times , Jan. 2, 2009, at A12.] According to TRI data, at least 18 facilities reported depositing more arsenic in coal ash impoundments than Kingston. Between 2000 and 2009, for example, the Gorgas steam plant in Parrish, AL reported depositing nearly four times the amount of arsenic placed in the TVA Kingston impoundment over the same period.

- Chromium. The Kingston plant reported disposing of 724,000 pounds of chromium in surface453

impoundments between 2000 and 2009. But according to TRI data, the JM Stuart plant in Manchester, Ohio, tops the list for chromium disposal in impoundm ents, reporting 2,048,632 pounds between 2000 and 2009. A total of 16 facilities reported disposing of more chromium in surface impoundments than Kingston.

- Lead. Duke’s Gibson station in Owensville, Indiana disposed of 1,483,276 pounds of lead in
surfac e impoundments between 2000 and 2009, or about three times the amount reported in Kingston for the same period. Sixteen plants reported releasing more lead to surface impoundments than Kingston.

- Nickel. The Gibson, JM Stuart, Ghent (Kentucky), Cayuga (N ew York), and Gaston (Alabama) plants reported the largest releases of nickel to surface impoundments between 2000 and 2009. Another fifteen plants disposed of nickel in amounts greater than Kingston between 2000 and
2009.

- Selenium. The JM Stuart plant in Ohio disposed of more than 162,000 pounds of selenium in impoundments between 2000 and 2009, or over 3 times the amount reported by Kingston. A total of 14 facilities report releases of selenium between 2000 and 2009 that exceed amounts disposed
of in t he Kingston impoundment.

c. The Sources Generating the Greatest Volumes of CCRs Are Located in States that Have the Most Lax Disposal and Reuse Safeguards.

The sources of greatest coal ash generation tend to be where regulatory controls are the weakest. With the exception of Pennsylvania, [Footnote 67: Pennsylvania Department of Environmental Protection recently passed new regulations governing the disposal of CCR in coal mines. While Pennsylvania regulations remain inadequate in several areas, it cannot be said that the state regulations are among the worst in the nation, considering the protection recently afforded to dumping in mines.] state programs in the ten largest coal ashproducing are grossly deficient and lack many basic requirements for ensuring safe coal ash disposal. The top ten generating states, Pennsylvania, Texas, Ohio, West Virginia, Kentucky, Indiana, Florida, Georgia, North Carolina and New Mexico, together generate over fifty percent of the CCR produced in the United States annually. Se ction III.B.1 of these comments details the deficiencies of these and 27 other CCR

generating states.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preamble for a discussion on our decisio n to regulate CCR under
subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06352

- 3 

### Organization 1 

### : Dayton Power & Light Company (DP&L) 

### Commenter 1 : JoAnne Rau Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:454

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Source and Volumes Do Not Support a Listing as Special Waste. (Criteria 1)

While CCRs are produced in significant volumes by electric generating facilities [FN 3: 75 Fed. Reg. at 35151.], that fact alone, nor the fact that they contain minor concentrations of trace elements, does not justify their regulation as a listed "special waste". It is well documented that the vast majority of CCRs produced by power plants, including those produced by DP&L facilities, would not be classified as a characteristic hazardous waste through ignitability, corrosivity, reactivity, or toxicity. USEPA includes data to that effect in Table 2 and Table 3 of the proposed rule. [FN 4: 75 Fed. Reg. at 35138.]

Resp onse: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10489

- 16 

### Organization 1 

### : Harsco Minerals International, a division of Harsco Corporation 

### Commenter 1 : Gene Iannazzo Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

From the moment it is created, boiler slag is a vitrified, glass

- like solid material that renders its constituents essentially inert and immobile in the environment. Boiler slag only comes into being when the coal ash in slag tap and cyclone type wet

- bottom furnaces is heat ed to the point of melting, and the extremely hot liquid coal ash is rapidly cooled by direct application of cold
water. This water

- quenching step super cools the molten coal ash and changes it into the vitrified material known as boiler slag. Slag tap and cyclone type furnaces are two different types of wet

bottom furnaces that have been in operation in the United States since about 1942. A slag

- tap furnace bums pulverized coal, and a cyclone furnace bums crushed coal. Neither type has been
built in the Un ited States since the 1960s.

Both types of furnaces are operated at very high temperatures so that the bottom ash is always kept in a molten state. Periodically, the molten ash is drawn off from the furnace bottom by allowing it to flow downward into an a sh hopper that contains the quenching water. The quenching process that creates the boiler slag has always been a part of the operating procedures
for these wet

- bottom furnaces. Because the operating procedures for existing wet

- bottom
furnaces have not cha nged in 50 years and no one is building new wet

- bottom furnaces, the nature of the resulting boiler slag has not changed and will not change. [Footnote 4: See Managing Coal Combustion Residues in Mines, National Research Council, (2006) at 30, (Exhibit 1: Managing Coal Combustion Residues in Mines, National Research Council, (2006))]455

Around 2.2 million tons of boiler slag are generated annually nationwide, and almost all of it (about 2.0 million tons per year) is beneficially reused. [Footnote 5: See 2009 Coal Combustion Product (Ccp) Production & Use Survey Report, American Coal Ash Association (Nov. 3, 2010) (Exhibit 2: 2 2009 Coal Combustion Product (CCP) Production & Use Survey Report, American Coal Ash Association (Nov. 3,2010))] Electric utilities wit h wet

- bottom furnaces sell boiler slag to Harsco and other companies that beneficially reuse the material.

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

- 10489

- 21 

### Organization 1 

### : Harsco Minerals International, a division of Harsco Corporation 

### Commenter 1 : Gene Iannazzo Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 5.1 

### Comment Excerpt Text: C. No Equipment Changes Or Modifications To Operating Procedures At Coal Fi red Electric Utilities Will Alter The Nature Or Properties Of Boiler Slag

There is no basis for concluding that the increased use of advanced air

- pollution control technologies at coal

- fired power plants will have any effect on either boiler slag's consti tuents or the potential for those constituents to leach from the boiler slag. Harsco understands that these potential concerns could arise only if new air pollution

- control technologies are incorporated on furnaces during new construction or added during m odifications of existing furnaces. EPA looked at this very issue in its report that evaluated "changes in composition and constituent release that may occur to fly ash and other coal combustion residues (CCRs) in response to changes in air pollution contro l technology at coal

- fired plants." [Footnote 23: EPA,
Characterization of Coal Combustion Residues From Electric Utilities

-- Leaching and Characterization Data, EPA

- 6001R

- 09/151 (Dec 2009) ("EPA Dec 2009") at ii.] The Agency observed that, "boiler slag a nd bottom ash are not of interest in this study because air emission controls are not expected to change their composition." [Footnote 24: Id at 1 (emphasis added)]

None of the advanced air

- pollution control technologies identified in the NPRM will affect the boiler slag produced in furnaces that create boiler slag. No power plants are purchasing and installing new slag tap or cyclone type wet

- bottom furnaces today. [Footnote 25: Managing Coal Combustion Residues m Mmes, National Research Council (2006) at 30 (Exhibit 1: Managing Coal Combustion Residues in Mines, National Research Council, (2006))] In addition, we have seen no evidence that existing slag tap or cyclone type furnaces are being modified and
retrofitted with the advanced air

- pollution control technologies that could alter the nature of the furnace's ash and the resulting boiler slag. Instead, we have observed that existing wet

- bottom456

furnaces continue to operate in their original form, are being retired, or are being retrofitted so they can bu rn fuels other than coal.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10489

- 25 

### Organization 1 

### : Harsco Minerals International, a division of Harsco Corporation 

### Commenter 1 : Gene Iannazzo Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.2.2 

### Comment Excerpt Text: EPA's approach of lumping boiler slag in a "bottom ash and slag" category without ensuring that the reported data actually were representative of boiler slag, is especially troubling given the
results of a 2006 Department of Energy ("DOE") survey of 42 CCR waste management units. That DOE report made two critical findings: (i) boiler slag accounted for only about two percent of all CCR generated in the U.S.; and (ii) boiler slag accounted for less than one p ercent of the materials disposed of in those 42 CCR waste

- management units. [Footnote 40: DOE, Coal Combustion Waste Management at Landfills and Surface Impoundments, 1994·2004 (Aug. 2006) at 4 and 25 (Exhibit 5: DOE, Coal Combustion Waste Management at La ndfills and Surface Impoundments, 1994

- 2004 (Aug. 2006)).] EPA's "lumping" approach in this rulemaking fails to account for the very small amount of boiler slag generated in this country, the very high percentage of boiler slag reuse, the extremely small a mount of boiler slag that ends up in landfills, the exceedingly small amount of boiler slag that might end up in a surface impoundment, and boiler slag's virtually complete resistance to leaching.

Response: The Agency acknowledges and appreciates the com ment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10489

- 48 

### Organization 1 

### : Harsco Minerals International, a division of Harsco Corporation 

### Commenter 1 : Gene Iannazzo Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.2.2 

### Comment Excerpt Text: Virtually all boiler slag generated in the U.S. i s beneficially reused. Each year, the nation's entire457

boiler

- slag output is approximately 2.2 million tons, and about 2.0 million of those tons are reused beneficially. [Footnote 88: See 2009 Coal Combustion Product (CCP) Production & Use Survey Report. Am erican Coal Ash Association (November 3,010) (Exhibit 2: 2009 Coal Combustion Product (CCP) Production & Use Survey Report, American Coal Ash Association (Nov. 3,2010)).]

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.
Section 2.2.2

- Present disposal and utilization practices Total Number of Submissions: 6 Total Number of Comments: 13



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 14 

### 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: 2.2.1 2.2.3 2.2.4 2.2.5 2.2.6 2.2.7 2.2.8 

### Comment Excerpt Text: In this section of our comments, each factor of section 8002(n) is evaluated in light of the
considerable evidence and recent data that have come to light since EPA’s 2000 Final Determination. [ ICF COMMENT ANALYSIS NOTE: for SECTION III. A, which starts page 12 of original comment #6315.1 through SECTION III. H, which ends on page 153 of original
comment #10495.1

-- each evaluates one of the ei ght Befill factors; those comments are usually coded to relevant issues within the issue outline instead of directly to 2.2.1 through 2.2.8 ] In section 8002(n), Congress instructed EPA to examine a wide range of factors: volume of coal ash; current disposa l and use; potential danger from mismanagement, documented cases of proven threats to health and the environment, alternatives to current disposal, the cost of such alternatives, the impact of regulation on the use of coal and other resources, and current and potential reuse of coal ash. Reexamination of all eight study factors reveals that regulation of CCRs under RCRA subtitle C of RCRA is clearly warranted.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Uni t IV of today’s preamble for a discussion on our decision to regulate CCR under

subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 16 

### Organization 1 

### : Earthjustice et. al. 

### Commenter 1 : Lisa Evans458

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



### Comment Excerpt Text: B. Consideration of the “Present Disposal and Utilization Practices” Reveals the Need for Subtitle C Regulation.

Consideration of the “present disposal and utilization practices” reveals serious and widespread deficiencies in current state regulatory programs for disposal and reuse of CCRs, which has resulted in the construction and operation of unsafe storage and disposal units and dangerous reuse applicati ons.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06352

- 4 

### Organization 1 

### : Dayton Power & Light Company (DP&L) 

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



### Comment Excerpt Text: Present Disposal and Utiliz ation Practices Are Far Improved Over Prior Practices and Significantly Diminish Any Rationale for Listing as Special Waste. (Criteria 2)

Current management practices whereby CCRs are disposed of properly in regulated landfills/ponds or utilized as benef icially useful products are fully protective of human health and the environment. Such practices are overseen in Ohio by Ohio EPA through mechanisms that have been in place for some time. In addition, the Ohio Department of Natural Resources (ODNR) regulat es the structural integrity of impoundment dikes through its Dam Safety program. As such, the potential danger from such facilities is minimized as USEPA itself declares"... state regulations have generally improved since 2000. In addition, it would appear that the industry itself is changing and improving its management practices." [FN 5: 75 Fed. Reg. at 35151.]

Response: The Agency acknowledges and appreciates the comment. 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.459



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08246

- 6 

### Organization 1 

### : Stinson Morrison Hecker LLP on behalf of Kansas City Board o f Public
Utilities 

### Commenter 1 : Parthenia B. Evans and Dennis Lane Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.1 

### Comment Excerpt Text: Factors One and Two Show Improvement in Present Disposal and Utilization Practices Despite Increased CCR Volumes The first two factors, amount and disposal of CCRs, show a decline in the proportionate share of CCRs being placed in surface impoundments wit h a markedly greater proportion being placed in landfills or being beneficially used. EPA’s estimates of CCRs generated by coal

- fired electric generating plants highlight the improvements in CCR disposal or uses in 2008 compared to those
in 1995: "

[See o riginal comment for table]

75 FR at 35151/1. [Footnote 2: EPA’s numbers are confusing. On one hand, the Notice states
that in the “mid

- 1990s” between “62 and 71 million tons of CCRs were generated by coal

- fired electric power plants.” 75 FR at 35151/1. On the other hand, the Notice states that in 1995, 26.2 million tons were landfilled, 53.2 million tons were disposed of into surface impoundments, another 26.2 million tons were beneficially used, and 9 million tons were placed in mines, id

., which amounts to a total of 114.6 million tons. That total is approximately 42 million tons more than the maximum of 71 million tons EPA estimated was generated yearly by electric power plants in the mid

- 1990s. The numbers in the above table were calculated by multiplyi ng the 1995 disposal and uses percentages ( id .) by 71 million tons.]Even though the total amount of electric plant CCRs increased by over 90% between the two periods, the amount placed in surface impoundment declined by a little more than 10%, while the am ounts going into landfills or being beneficially used nearly tripled. See 75 FR at 35156/2 (noting “significant increase” in beneficial use). The trend shows a lower health risk under existing regulation than was presented with the 2000 Determination, and thus supports continuation of the Bevill exemption for CCRs.

Response: The Agency acknowledges and appreciates the comment. 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

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10489

- 17 

### Organization 1 

### : Harsco Minerals International, a division of Harsco Corporation 

### Commenter 1 : Gene Iannazzo Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:460

Other Sections: 2.2.8 

### Comment Excerpt Text: Harsco annually purchases about 1 million tons of boiler slag and incorporates the vast majority of each year's purchases in products that beneficially reuse boiler slag. Last yea r, for example, we used about 1.1 million tons of boiler slag in our products. Nearly 50 percent of the boiler slag we purchase is used as an abrasive, and about the same amount is incorporated into roofing shingles. Approximately two percent of our boiler slag is beneficially reused in other ways, e.g. by being used as a road traction material, wastewater filtration system component, glass making ingredient, or a mineral filler in asphalt production. Some portion of our annual boiler slag purchases may be stockpiled for use in subsequent years, and a small percentage will be discarded for failure to meet product specifications.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10489

- 25 

### Organization 1 

### : Harsco Minerals International, a division of Harsco Corpora tion 

### Commenter 1 : Gene Iannazzo Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.2.1 

### Comment Excerpt Text: EPA's approach of lumping boiler slag in a "bottom ash an d slag" category without ensuring that the reported data actually were representative of boiler slag, is especially troubling given the results of a 2006 Department of Energy ("DOE") survey of 42 CCR waste management units. That DOE report made two critica l findings: (i) boiler slag accounted for only about two percent of all CCR generated in the U.S.; and (ii) boiler slag accounted for less than one percent of the materials disposed of in those 42 CCR waste

- management units. [Footnote 40: DOE, Coal
Combust ion Waste Management at Landfills and Surface Impoundments, 1994·2004 (Aug. 2006) at 4 and 25 (Exhibit 5: DOE, Coal Combustion Waste Management at Landfills and Surface Impoundments, 1994

- 2004 (Aug. 2006)).] EPA's "lumping" approach in this rulemaking
fail s to account for the very small amount of boiler slag generated in this country, the very high percentage of boiler slag reuse, the extremely small amount of boiler slag that ends up in landfills, the exceedingly small amount of boiler slag that might end up in a surface impoundment, and boiler slag's virtually complete resistance to leaching.

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

- 10489

- 48 

### Organization 1 

### : Harsco Minerals International, a division of Harsco Corporation461



### Commenter 1 : Gene Iannazzo Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Con text Assigned/Due:
Other Sections: 2.2.1 

### Comment Excerpt Text: Virtually all boiler slag generated in the U.S. is beneficially reused. Each year, the nation's entire
boiler

- slag output is approximately 2.2 million tons, and about 2.0 million of those tons are reused beneficially. [Footnote 88: See 2009 Coal Combustion Product (CCP) Production & Use Survey Report. American Coal Ash Association (November 3,010) (Exhibit 2: 2009 Coal Combustion Product (CCP) Production & Use Survey Report, American Coal Ash Association (Nov. 3,2010)).]

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

- 2011

- 0392

- 0239

- 17 

### 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: 5.6.4 3.3.2.7 

### Comment Excerpt Text:

ATTACHMENT 5

[See EPA

- HQ

- RCRA

- 2011

- 0392

- 0239

- A1, Attachment 5, for PowerPoint presentation “Coal Combustion Facility Assessment Report," Stantec Consulting Services, Inc., October 20, 2010]

Response: The Agency acknowledge s and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0239

- 18 

### 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: 5.6.4 3.3.2.7 

### Comment Excerpt Text:

ATTACHMENT 6462

[See EPA

- HQ

- RCRA

- 2011

- 0392

- 0239

- A1, Attachment 6, for report “TVA CCR Disposal Facility Assessment”, Stantec Consulting Services, Inc.] Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0239

- 4 

### 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: 5.6.4 2.2.3 3.3.2.7 3.3.2.3 

### Comment Excerpt Text: In the NODA, EPA noticed new facility and waste management data including the EPA’s Coal Combustion Residuals Impoundment Assessment Reports. (See V.2.b.). These reports consist of
the fin al contractor reports assessing the structural integrity of 374 surface impoundments containing CCRs. [Footnote 3: See http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/index.htm.] EPA assessed all of the known ponds with a hazard potential rating of “high” or “significant,” as reported in the responses provided by electric utilities to EPA’s information requests, as well as additional units identified during field assessments and a large number of previously “unrated” ponds.

According to EP A, these reports were completed by professional engineers “who are experts in the area of dam integrity.” [Footnote 4: Id.] The reports were based on a visual assessment of the site, interviews with site personnel, and the review of geotechnical reports an d studies related to the design, construction and operation of those impoundments, if such reports were available. The engineering firms also reviewed past state and federal inspections of the impoundments. The contractors rated the impoundments as “satisf actory,” “fair,” “poor,” or “unsatisfactory,” terms commonly used in the field of dam safety.

As described below, the results of the EPA contractors’ inspections indicate a significant level of mismanagement of high and significant hazard ponds and a heig htened risk to human health and the environment that was not known at the time of EPA’s publication of its proposed rule in June 2010. Therefore EPA should consider all data and findings contained in these inspection reports
in its determination as to whet her CCR should be listed as a hazardous waste pursuant to 40 C.F.R. § 261.11(a)(3). In addition, the inspection reports are relevant to the analysis required by section 8002(n) of the Resource Conservation and Recovery Act (RCRA), specifically section
8002 (n)(2), which requires the evaluation of “present disposal and utilization practices,” and section 8002(n)(3), which mandates analysis of the “potential danger, if any, to human health and the environment from the disposal and reuse of such materials.” 42 U.S.C. § 6982(n).

Specifically, in deciding whether to list a solid waste as a hazardous waste, section 261.11(a)(3) directs EPA to consider a set of eleven factors to determine whether a “waste is capable of463

posing a substantial present or potential haza rd to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed.” Two of the eleven factors are particularly relevant to the pond inspection reports. Pursuant to section 261.11(a)(3)(vii), EPA is to c onsider “the plausible types of improper management to which the waste could be subjected” and section 261.11(a)(3)(iii) directs EPA to consider “the potential of the constituent ... to migrate from the waste into the environment under the types of improper management considered in paragraph (a)(3)(vii).” The pond inspection results described below demonstrate that coal ash “is capable of posing a substantial present or potential hazard to human health or the environment” when stored in surface impoundments, especially in light of the documented types of improper management and the reported instances of migration of CCR from such impoundments.

Response: The Agency acknowledges and appreciates the comment. Moreover, the commenter is referred to Unit III and Unit VI of the preamble for a discussion how the site assessment mentioned in the commenter’s statement were used to support the regulatory requiremen ts of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0239

- 7 

### Organization 1 

### : Earthjustice, et. al. 

### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sec tions: 5.6.4 3.3.2.7 

### Comment Excerpt Text: D. EPA must consider the inspection and condition of Tennessee Valley Authority (TVA) surface impoundments.

EPA’s failure to consider the inspection reports and condition of TVA’s many CCR surface impoundments renders the Agency’s conclusions on the state of the nation’s ash ponds incomplete. The largest coal ash disaster in history occurred at a TVA facility, and TVA operates some of the largest and most dangerous coal ash surface impoundments in the U.S. TVA’s 11
coal

- fired power plants alone generate 6.6 million tons of CCRs annually, approximately 5 percent of the total tonnage of CCRs generated nationally. Reports commissioned by TVA on the condition of its 24 coal ash impoundments dated October 2010 and May 2011 demonstrate the severity of recent problems at TVA’s ash storage facilities. [Footnote 23: Coal Combustion Facility Assessment Report, STANTEC 14 (Oct. 20, 2010), http://www.tva.gov/power/stantec2/Oct%202010%20presentation.pdf [hereinafter 2010 TVA
R eport] and John S. Montgomery et al., TVA CCR Disposal Facility Assessment, STANTEC AND TVA 5 (May 9 2011), http://www.flyash.info/2011/110

- Montgomery

- Stantec

- 2011.pdf [hereinafter Stantec 2011], attached to these comments as Attachment 5 and 6, respective ly.] EPA must add the analyses performed by TVA’s consultants to the docket and consider this substantial evidence of mismanagement in the rulemaking.464

One critical reason why EPA must consider the TVA inspections in its assessment of the “plausible types of mismanagement” [Footnote 24: As required by 40 C.F.R. §261.11(a)(3).] and the “present disposal and utilization practices” [Footnote 25: As required by 42 U.S.C. § 8002(n)(3).] is that the TVA inspections included engineering evaluations involving geote chnical explorations and hydraulic and hydrologic evaluations. As explained previously, EPA’s 374 inspections of coal ash ponds consisted only of visual inspections, interviews and document reviews. Consequently, the EPA inspectors were often unable to det ermine the structural stability of ponds in the many instances where no previous geotechnical investigations existed. In contrast, TVA’s inspections included:

- Drilling, sampling and instrumenting of existing embankment and foundation materials to
charac terize subsurface conditions, and field and laboratory testing to determine engineering properties of these materials.

- Slope stability and seepage calculations.

- Hydrologic and hydraulic calculations of impoundments and spillway systems to assess
free board requirements.

- Dam breach analyses including 1

- dimensional and 2

- dimensional routings of breach hydrographs to identify inundation impacts and assess dam safety hazard classification.

- Additional field reconnaissance and observations.

- Developi ng recommendations and conceptual designs to address identified issues. [Footnote 26: Stantec 2011 at 2.]

Because of the increased scope of the TVA inspections, information regarding widespread instability of TVA’s CCR impoundments came to light, as descr ibed below. EPA must place these inspection reports in the docket and, in addition, must evaluate them critically.

Because these reports were completed by contractors hired by TVA, [Footnote 27: The TVA Office of Inspector General Report dated July 23, 20 09 found that previous TVA contractors avoided transparency and accountability when evaluating the cause of the Kingston spill, available at http://oig.tva.gov/PDF/09rpts/2008

- 12283

- 02.pdf.] it is possible that additional problems at these impoundments wil l surface after a more objective evaluation by EPA.

The findings of TVA self

- inspections, nevertheless, constitute a scathing indictment of TVA’s design, operation and maintenance of CCR impoundments. Upon initial inspection in 2009, fully half of TVA’s 2 4 coal ash ponds had stability less than the federal standard of 1.5. [Footnote 28: 2010 TVA Report, supra fn 23.] Seven of the ponds

— namely two ponds at Bull Run; one at Cumberland, Johnsonville, and Paradise; and both ponds at Widows Creek

— measured lowe r than 1.3 in stability tests. [Footnote 29: Id at 14.] Three of the ponds that failed the stability test were rated high hazard ponds and three are significant hazard. [Footnote 30: Id at 11.] System

wide concerns affecting these potentially hazardous pon ds included weir structures that were tall and unsupported. TVA’s weir structures were found typically to be of a type that is prone to465

developing leaks. [Footnote 31: John S. Montgomery et al., TVA CCR Disposal Facility Assessment, STANTEC AND TVA 5 (May 9 2011), http://www.flyash.info/2011/110

- Montgomery

- Stantec

- 2011.pdf.] TVA’s consultants also found a trend wherein maintenance recommendations, like recommendations to clear vegetation from drainage ditches, were made multiple years in a row but never car ried out. [Footnote 32: Id.] TVA’s ponds were not only poorly built; they were also poorly managed, lacking the Emergency Action Plans and monitoring equipment necessary to prevent and react to dam failures. [Footnote 33: Id.]

TVA’s unstable ponds require d major remediation actions including five spillway replacements. [Footnote 34: 2010 TVA Report at 12.] No documentation is publically available to demonstrate that the necessary remediation has been completed, despite estimates provided by TVA that all

re mediation would be finished in the third quarter of 2011. As of May 2011, remedial work on the TVA ponds was underway for two and a half years and required a cumulative 472,324 man

hours to complete. [Footnote 35: 2010 TVA Report at 3, 14.]

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0239

- 9 

### 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: 5.6.4 2.2.3 3.3.2.3 3.3.2.7 

### Comment Excerpt Text: F. EPA must consider coal ash impoundment inundation maps in evaluating risk to human health
and the environment.

In order to evaluate the risk to human hea lth and the environment from CCR surface impoundments, EPA must obtain and assess inundation maps for all high and significant hazard ponds. While some of EPA’s inspection reports include an inundation map, the majority of reports do not. In fact, there ap pear to be no inundation maps for the high hazard ponds that were found to be in poor condition. The purpose of inundation maps is to identify what areas would be affected by a pond failure. Analysis of these maps would permit EPA to calculate the loss of life threatened by failures of high hazard ponds in specific locations, as well as provide information regarding the environmental threat to drinking water sources, water bodies, wetlands, and other areas by high and significant hazard ponds. EPA could als o identify the economic losses and disruptions that would occur from the failure of both high and significant hazard dams. This inquiry is required by both sections 8002(n)(2) and (3) of RCRA and sections 261.11(a)(3)(iii) and (vii).

A cursory examination of a few high hazard CCR impoundments points to the urgent need to complete this inquiry and better assess risks from the nation’s 235 high and significant hazard ponds. A failure at all of the following CCR ponds would take a significant number of lives and466

devastate the adjacent community and its environment. Because inundation maps are not easily assessed by the public, EPA must conduct this inquiry and publish the results, which should quantify the threat posed by the impoundments in lives and dollars.

1. Little Blue Run Residual Waste Impoundment, Beaver County, Pennsylvania

A failure at the 1300

- acre, 400

- foot high Little Blue Run Residual Impoundment would endanger about 50,000 people, according to the Pennsylvania Department of Environmental Prote ction. [Footnote 39: See http://www.pittsburghlive.com/x/pittsburghtrib/news/regional/s _604497.hmtl.]. This unlined impoundment is 30 times larger than the pond that failed in Kingston. EPA’s inspection report documents seeps at the pond, and groundwater contamination (arsenic above drinking water standards) has been found in residential wells near the impoundment. [Footnote 40: Earthjustice, Environmental Integrity Project, Sierra Club. In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers America ns and their Environment,” August 2010, available at www.earthjustice.org/coalash.]

[See original comment for aerial view of Little Blue Run Residential Waste Impoundment located on the border of Pennslyvania, West Virginia, and Ohio next to the Ohio Rive r]

2. Cardinal Fly Ash Reservoir, Brilliant, Ohio

AEP’s unlined impoundment at its Cardinal Power Plant is the sixth

- largest in the nation. The No. 2 dam reaches a height of 230 feet, with the No. 1 dam rising over 50 feet above it. [Footnote 41: CLOUGH, HARBOUR & ASSOCIATES (CHA), FINAL REPORT,
ASSESSMNET OF DAM SAFETY OF COAL COMBUSTION SURFACE IMPOUNDMENTS, AMERICAN ELECTRIC POWER, CARDINAL POWER PLANTS 5 (2009), http://epa.gov/waste/nonhaz/industrial/special/fossil/surgeys2/aep

- cardinal

- final.pdf.]
Al though clearly the community below the dams would be devastated in the event of a pond failure, there is nothing in the record to quantify the lives lost or damage that would result.

[See original comment for aerial view of Cardinal Fly Ash No.1 Dam and N o. 2 Dam]

3. Havana East Pond System, Havana, Illinois

According to Dynergy, owner of the Havana Power Station, a failure at its high hazard, 4

- cell impoundment system could send toxic coal ash five miles downstream, likely enveloping the immediately adj acent homes and a school that is located within two miles. [Footnote 42: Kim McGuire, Coal Ash Disposal Rules Vary from State to State, THE SOUTHERN NEWS SERVICES, Jan. 24, 2009, http://www.thesouthern.com/news/article_beb4d263

- d133

- 5820

- 96b4

- ab9e80026126. html.]

[See original comment for aerial view of Havana East Ash Pond System]

4. Asheville Surface Impoundment, Asheville, North Carolina

The unlined surface impoundment at Progress Energy’s Ashville Electric Plant was built in 1964.467

EPA inspection of th e impoundment in May 2009 found it in poor condition. [Footnote 43: DEWBERRY & DAVID, INC, FINAL REPORT, COAL COMBUSTION WASTE IMPOUNDMENT, DAM ASSESSMENT REPORT, SIT 7, 1982 POND & 1964 POND, PROGRESS ENERGY CAROLINAS, ASHEVILLE, NORTH CAROLINA (2009), av ailable at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/asheville

- final1.pdf.] Among the problems noted in the inspection were the absence of a stability analysis and dam break analysis, the presence of trees and deep

- rooted vegetation on its embankment, and the absence of
erosion

- minimizing rip

- rap. Despite the high population density near the pond, there is no record in the docket of the area that would be inundated by coal ash should the 45

- year old impoundment fail.

[See original co mment for aerial view of Asheville Surface Impoundment]

5. Cane Run Ash Basin, Louisville, KY

The unlined coal ash impoundment at Louisville Gas and Electric Company’s Cane Run Power Station is located across the street from a residential community. [Foo tnote 44: CLOUGH, HARBOUR & ASSOCIATES (CHA), FINAL REPORT, ASSESSMENT OF DAM SAFETY OF COAL COMBUSTION SURFACE IMPOUNDMENTS, LOUISVILLE GAS & ELECTRIC COMPANY, CANE RUN POWER STATION app. A (2010), http://www.epa.gov/wastes/nonhaz/industrial/special/fossi l/surveys2/eon

- cane

- final.pdf.] This impoundment was built in 1972 and was not designed or constructed by a professional engineer, nor is the impoundment currently maintained by a professional engineer. [Footnote 45: See US EPA Impoundment database, availa ble at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm.] There is no data in the docket quantifying the threat posed to the adjacent neighborhood in the event of a dam
failure.

[See original comment for a erial view of Cane Run As h Basin]

Response: The Agency acknowledges and appreciates the comment. The commenter is further referred to Units X and XI of the preamble for a further discussion how EPA evaluated risks to

human health and the environment in its risk assessment as we ll as how EPA evaluated the damage case reports. Furthermore, the commenter should also referre d to the response to comment documents supporting these two aspects of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0248

- 3 

### Organization 1 

### : Headwaters Resources, Inc. 

### Commenter 1 : William Gehrmann III Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.2.8 2.1.3 10.2.2 

### Comment Excerpt Text: I. EPA Is Required to Cons ider the Beneficial Use Data and Information Under the Bevill468

Amendment

As the Utility Solid Waste Activities Group ("USWAG") explained in its comments on the proposed rule, [Footnote 1: Headwaters incorporates by reference those portions of USWAG's

comm ents regarding the Bevill Amendment requirements and process, found at pages 27

- 41. Comments of The Utility Solid Waste Activities Group, The Edison Electric Institute, The American Public Power Association, and The National Rural Electric Cooperative Asso ciation on Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities; Proposed Rule, Docket
No. EPA

- HQ

- RCRA

- 2009

- 0640, at 27

- 41 (Nov. 19, 2010), available at www .regulations.gov.] EPA does not have authority to undertake this rulemaking because EPA properly decided to regulate CCRs under Subtitle D, rather than Subtitle C, in its 2000 determination

-- a determination which EPA cannot now reverse. Headwaters agrees w ith this point. Further, as USWAG also stated and as we also agree, even if we assume that somehow EPA could now legally reverse its final 2000 regulatory determination for CCRs, EPA could only do that if it were to follow the Bevill amendment procedures s et forth in the statute for regulating disposed CCRs as hazardous waste. See 42 U.S.C. §§ 6921(b)(3)(A) and (C), and 6982(n). As part of these procedures, EPA must "conduct a detailed and comprehensive study and submit a report on
the adverse effects on hu man health and the environment, if any, of the disposal and utilization of fly ash waste, bottom ash waste, slag waste, flue gas emission control waste, and other byproduct materials generated primarily from the combustion of coal or other fossil fuels." 4 2 U.S.C. § 6982(n). This study must include a detailed analysis and consideration of a number of
factors:

(1) "the source and volumes of such material generated per year"; (2) "present disposal and utilization practices"; (3) "potential danger, if any, to human health and the environment from the disposal and reuse of such materials"; (4) "documented cases in which danger to human health or the environment from surface runoff or leachate has been proved"; (5) "alternatives to current disposal methods" ; (6) "the costs of such alternatives"; (7) "the impact of those alternatives on the use of coal and other natural resources"; and (8) "the current and potential utilization of such materials."

42 U.S.C. § 6982(n). Factors (2) ("present disposal and u tilization practices") and (8) ("the current and potential utilization of such materials") specifically relate to beneficial use of CCRs. Thus, under the Bevill Amendment, EPA is required to consider data and other information relating to beneficial use of CCRs in any rulemaking effort that could result in greater regulation
of CCRs. .

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 referr ed to Units IV and VI for a complete discussion of the beneficial use aspects of the rule.469

Section 2.2.3

- Potential danger to human health and environment from CCR disposal Total Number of Submissions: 4 Total Number of Comments: 8



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 14 

### 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: 2.2.1 2.2.2 2.2.4 2.2.5 2.2.6 2.2.7 2.2.8 

### Comment Excerpt Text: In this section of our comments, each factor of section 8002(n) is evaluated in light of the considerable evidence and recent data that have come to light since EPA’s 2000 Final Determination. [ ICF COMMENT ANALYSIS NOTE: for SECTION III. A, which starts page 12 of original comment #6315.1 through SECTION III. H, which ends on page 153 of original
comment #10495.1

-- each evaluates one of the eight Befill factors; those comments are usually
coded to relevant issues wi thin the issue outline instead of directly to 2.2.1 through 2.2.8 ] In section 8002(n), Congress instructed EPA to examine a wide range of factors: volume of coal ash; current disposal and use; potential danger from mismanagement, documented cases of

proven threats to health and the environment, alternatives to current disposal, the cost of such alternatives, the impact of regulation on the use of coal and other resources, and current and potential reuse of coal ash. Reexamination of all eight study factors reveals that regulation of CCRs under RCRA subtitle C of RCRA is clearly warranted.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 42 

### 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: C. “The Potential Danger to Human Health and the Environment From the Disposal and
Reuse of CCRs” Reveal s the Need for Subtitle C Regulation.

Most fundamentally under RCRA and in keeping with Section 6982(n)(3), EPA must analyze the potential danger to human health and the environment from the disposal and reuse of CCR. To fulfill this statutory mandate, E PA must consider the toxicity of the waste and evaluate the threat470

it poses in a variety of current and historical disposal scenarios, as well as a wide range of current reuse applications. There are robust data available demonstrating that the threat to h uman health and the environment posed by CCR from both current and past disposal and reuse is significant and increasing. This section reviews the data revealing rising toxicity, increasing waste volume, documented high risk to people and ecosystems, rampa nt historic mismanagement, and careless and dangerous reuse applications

— all of which cause grave threats to health and the environment through poisoning of groundwater, surface water, air, soil and catastrophic collapse.

Response: The Agency acknowledg es and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 46 

### 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: 6.5.3 

### Comment Excerpt Text: 2. EPA’s “Human and Ecological Risk Assessment of Coal Combustion Wastes” Demonstrates Extremely High Risk to Human Health and the Environment from Mismanagement of CCRs.

As EPA notes in the prea mble, the Agency’s Health and Ecological Risk Assessment of Coal Combustion Wastes (April 2010) provides “further confirmation of the high risks presented in the mismanagement of CCRs disposed in landfills and surface impoundments.” [Footnote 218:
75 Fed. Reg. 35144.] The risks found in this assessment are, in fact, extremely high when compared with EPA’s target level of protection of human health and the environment. For this rule and for other EPA listing determinations, EPA defined the target level to be an incremental lifetime cancer risk of no greater than one in 100,000 (10

- 5) for carcinogenic chemicals and a hazard quotient of 1.0 for noncarcinogenic chemicals. [Footnote 219: Id. EPA uses these same target levels in other EPA listing decisions. See

, e.g. , Final Rule for Nonwastewaters from Productions of Dyes, Pigments, and Food Drug and Cosmetic Colorants (70 Fed. Reg. 9144),
available at http://www.epa.gov/wastes/law

- regs/state/revision/frs/fr206.pdf)] Yet the CCR risk
assessment found that at 90th percentile “the management of CCRs in unlined or clay

- lined waste management units (WMUs) result in risks greater than the risk criteria of 10

- 5 for excess cancer risk to humans or an HQ greater than 1 for noncancer effects to both human and ecological rec eptors which are the criteria generally used in EPA’s listing determination procedure.” [Footnote 220: Id. ]

More specifically, as EPA indicates in its preamble:

- 90th percentile risk estimates, for arsenic from unlined surface impoundments are as high as 1 in 50 (2000 times EPA’s target goal) and non

- cancer effects estimates for cobalt were as high as471

500 (500 times the target hazard quotient); [Footnote 221: 75 Fed. Reg. at 35,145.]

- 90th percentile risk estimates, for arsenic, antimony and molybdenum t hat leak from unlined landfills, reveal individual lifetime cancer risk is as high as 1 in 2000, 50 times EPA’s target goal. [Footnote 222: Id. ]

Additional risks above EPA’s benchmark for both 90th and 50th percentile estimates for lined
and unlined landf

ills and surface impoundments are summarized in the preamble and set forth in the risk assessment. These risks are from a long list of chemicals harmful to human health and the environment, including, selenium, boron and lead (in addition to the metals men tioned above).

Clearly the risks found by EPA far exceed target levels for listing, as EPA admits. Congress mandates that EPA consider these risks to human health and the environment in deciding whether CCR warrants regulation under subtitle C. [Footnote 223: 42 U.S.C. §§ 6942(n)(4), 6921(b)(3)(C).] Consequently the agency’s obligation to regulate CCRs under subtitle C is clear. In this section of our comments, however, we describe numerous ways in which EPA’s 2010 Risk Assessment significantly underestim ated the risk posed by coal ash to human health and the environment. Despite the high risks acknowledged in EPA’s risk assessment, the assessment nevertheless failed in several critical ways to assess fully and accurately the scope and scale of the risks p osed by coal ash.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 06 40

- 06315

- 55 

### 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: 6.4.7 

### Comment Excerpt Text:
i. EPA Must Consider Discharges to Surface Water in the Risk Assessment.

While EPA did evaluate risks posed by groundwater transport to surface waters, EPA claims that the risks from direct discharges to surface waters is outside the scope of the risk assessment
beca use these discharges are regulated under the Clean Water Act. [Footnote 258: EPA, 2010 Risk Assessment, at 4

- 39.] However, RCRA does not preclude EPA from considering potential danger and damage from coal combustion waste disposal that is caused by Clean W ater Act discharges. [Footnote 259: See 42 U.S.C. § 6982(n).] In fact, the statute directs EPA to evaluate
all “potential danger” from disposal and evaluate damage to human health and the environment from leachate. [Footnote 260: 42 U.S.C. § 6982(n)(3),

- ( 4).] Furthermore, the RCRA open dump regulations demonstrate that Clean Water Act discharges are not per se excluded from the scope472

of RCRA. [Footnote 261: See 40 C.F.R. § 257.3

- 3(a) (stating that facilities that discharge in
violation of the Clean Water A ct are open dumps).] Finally, EPA itself includes sites that have caused damage to the environment from direct discharge to surface waters in its 2007 report documenting coal combustion waste damage cases. [Footnote 262: EPA, Coal Combustion Waste Damage A ssessments , at 12.]

First, the section 8002(n) criteria direct EPA to evaluate the (1) “potential danger, if any, to human health and the environment from the disposal and reuse of [coal combustion waste]” and (2) “documented cases in which danger to huma n health or the environment from surface runoff or leachate has been proved . . . .” [Footnote 263: Id. ] The criteria do not exclude potential danger from disposal of coal combustion waste that is the result of a direct discharge to surface
waters. The dis posal of these wastes in surface impoundments and landfills creates discharges to surface waters. In other words, direct discharges are directly related to, and a component of, the disposal of coal combustion waste. As RCRA directs EPA to evaluate all pote ntial danger from these wastes, it must assess the danger posed to public health and the environment by direct discharges to surface waters.

EPA has recognized this obligation implicitly in the past. In its 2007 report, Coal Combustion Waste Damage Assess ments, EPA specifically stated that proven damage cases are not limited “to those sites with a primary MCL exceedance(s) in ground water distant from the waste management unit.” [Footnote 264: Id. ] Thus, EPA noted that “[a] case still may be considered

pro ven under the scientific investigation test if a scientific study demonstrates there is documented evidence of another type of damage to human health or the environment (e.g., ecological damage).” [Footnote 265: Id. at 12

– 13.]

In keeping with this observa tion, EPA has identified direct discharge to surface waters as the basis for consideration as a proven damage case. For example, EPA identified the Georgia Power Company’s Plant Bowen coal combustion waste impoundment as a proven damage case based on “unpe rmitted discharge of water containing ash slurry into the Euharlee Creek resulting in a temporary degradation of public waters.” [Footnote 266: Id. at 20.] Belews Lake in North Carolina is listed as a proven damage case based on “[s]cientific evidence of e xtensive impacts on fish populations due to direct discharge to a surface water body.” [Footnote 267: Id. at 25.] Additionally, the Basin Electric Power Cooperative W.J. Neal Station Surface Impoundment in North Dakota is an EPA damage case based on a site inspection that “found documentation of releases to ground water and surface water from the site.” [Footnote 268: Id. at 36.] There is no justification for failing to exclude the exposure pathway documented in these damage cases from
the risk assessment. The statute directs EPA to consider all potential danger to human health and the environment and all damage from leachate, and EPA’s risk assessment should consider risks posed by direct discharges of leachate from surface impoundments and landfills.

Seco nd, the RCRA open dumping regulations provide further support that direct discharges from coal combustion waste surface impoundments and landfills are within the scope of EPA’s RCRA risk assessment. A facility is a RCRA open dump if the facility “cause[s] a discharge of pollutants into waters of the United States that is in violation of the requirements of the National Pollutant Discharge Elimination System (NPDES) under Section 402 of the Clean Water Act, as amended.” [Footnote 269: 40 C.F.R. § 257.3

- 3(a). ] Although several courts have held that473

citizens may not enforce violations of 40 C.F.R. § 257.3

- 3(a), EPA has expressly stated that the regulation is valid for determining whether a facility is an open dump. [Footnote 270: EPA, Final
Rule: Guidelines for Development and Implementation of State Solid Waste Disposal Facilities and Practices, 46 Fed. Reg. 47,048, 47,050 (Sept. 23, 1981).]

"[T]oday’s amendments . . . modify the surface

- water criterion of § 257

- 3.3. As originally promulgated, that standard wo uld have made discharges violating requirements under Section 402 or Section 404 of the Clean Water Act open dumping practices as well. A party causing such a violation could simultaneously be subject to penalties under the CWA and a citizen suit to enjoin ‘open dumping’ under RCRA. Today’s amendment eliminates this double liability. However, since the open dump inventory classification for purposes of the State planning program does not impose legal sanctions under RCRA, the Criteria retain the provision t hat a violation of Section 402 or Section 404 makes a facility an open dump . . . EPA believes that the
CWA enforcement mechanisms are sufficient to handle violations under Section 402 and 404. " [Footnote 271: Id. (emphasis added).]

Thus, EPA’s assertio n that Clean Water Act discharges are somehow outside the scope of review because the risk assessment was undertaken pursuant to RCRA is without merit. EPA must consider all potential danger from coal combustion waste disposal and all damage from leachate when determining whether Subtitle C regulations are warranted. [Footnote 272: 42 U.S.C. § 8002(n).] Danger and damage to public health and the environment caused by Clean Water Act discharges are not exempt, and EPA must evaluate risks posed by both direct discharges to surface waters and groundwater transport to surface water.

Response: The Agency acknowledges and appreciates the comment. 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. However the commenter is referred to the risk assessment section of the preamble which can be found in Unit X.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06352

- 5 

### Organization 1 

### : Dayton Power & Light Company (DP&L) 

### Commenter 1 : JoAnne Rau Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.2.4 

### Comment Excerpt Text: Little or No Hard Evidence Exists That the Potential Danger and Documented Proven Damage Cases Would Support Listing. (Criteria 3 and 4)

USEPA cites several of what it refers to as ':proven damage cases" as sup port for its proposal to regulate CCRs as a subtitle C special waste. [FN 6: 75 Fed. Reg. at 35234.] However, a review474

of these cases shows that a majority of the sites to which USEPA refers can only be classified as former sand and gravel pits or other un lined facilities that were used for the historic disposal of CCRs (some dating back to the 1940's and 1950's) under practices then considered acceptable. Such methods are not now standard practice and therefore are not representative of more recent
or toda y's management strategies which are employed at most, if not all CCR disposal facilities. In another instance where the agency references a location where CCRs had been placed, as USEPA puts it, "under the guise of 'beneficial use'"

- the Battlefield Golf Course, USEPA's own April 2010 Final Site Inspection Report seems to contradict the agency's position that this site is a proven case of danger to human health or the environment. Specifically, this report concluded
that:

(i) metals contaminants were belo w MCLs and Safe Drinking Water Act action levels in all residential wells that EPA tested; (2) (sic) the residential well data indicate that metals are not migrating from the fly ash to residential wells; and (iii) there are no adverse health effects

expec ted from human exposure to surface water or sediments on the Battlefield Golf Course site as the metal concentrations were below the ATSDR standards for drinking water and soil. Additionally, the sediments samples in the ponds were below EPA Biological Tec hnical Assistance Group screening levels and are not expected to pose a threat to ecological receptors. [FN 7: 75 Fed. Reg. at 35155.]

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preambl e for a discussion on our decision to regulate CCR under
subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08246

- 8 

### Organization 1 

### : Stinson Morrison Hecker LLP on behalf of Kansas City Board of Public
Utilities 

### Commenter 1 : Parthenia B. Evans and Dennis Lane Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.2.4 

### Comment Excerpt Text: Factors Three and Four Present A Number of Open Questions that Cal l for Resolution and Clarification, Rather than for Overinclusive Regulation The next Bevill factor analyzed, documented cases of proven health or environmental danger, addresses cases involving disposal in unlined units, the Pennsylvania and TVA cases no ted above, and cases involving the “large

- scale placement, akin to disposal, of CCRs, under the guise of ‘beneficial use.’” 75 FR at 35155/2. Addressing the latter point, clarification of what are permissible beneficial uses would provide certainty for the industry, but the lack of clarity at this point is not grounds for imposing subtitle C regulations. As the Notice recognizes, 75 FR at
35163 65, the question of what uses should be considered beneficial raises a panoply of issues that have not been fully ventilated, much less resolved. Further, the issues raised do not readily lend themselves to a single nationwide answer. See id . at 35163/3 (noting that effects depend "on475

the characteristics of the CCR, the amount of material placed, and the site conditio ns"). Despite recognizing that variable conditions affect whether a given use is hazardous in individual circumstances and "the many beneficial use opportunities for CCRs," id. 35164/3, the Notice favors a prohibition against any unencapsulated CCR use wi th an opportunity for individual projects to seek a waiver. Id . at 35155/1. Either an outright prohibition or removing the Bevill exemption for unencapsulated use is likely, however, to stifle innovation, both by discouraging development of new uses and by increasing the time and expense of their implementation. If, after review of the responses to the questions raised, EPA still believes that federal regulation is needed, the better course would be to set minimum standards that must be met, and then allow the States to apply those standards in light of the local conditions presented. Likewise, with regard to the damage cases resulting from unlined landfills or from stability problems, there seems very little, if any, value to imposing hazardous waste stand ards that address a chemical issue, not the physical problems associated with the damage cases. If anything, the better course might be to institute dam stability testing and linear requirements in those States where such requirements are not already in pl ace. Such an approach would limit any variations in implementation and enforcement of cures to the problems that caused these damage

cases. Aside from the disconnect in imposing regulations that address a chemical issue in response to physical stability p roblems, the Notice lacks support for the need for such regulations. The Notice states "the potential exists for the chemical characteristics of certain CCRs . . . to increase, which could result in increases in releases from management units. . .." 75 FR at 35153/2. To support this proposition EPA relies on an apples to oranges comparison based on references to 1999 CCR chemical data juxtaposed with CCR chemical data developed over the past few years. First, the two studies use different methodologies to r each different measurements of the chemical characteristics. The 1999 data, developed using EPA's Toxicity Characteristic Leaching Procedure (TCLP), an approved 40 C.F.R. Part 136 Method, presents its results as mean values. 75 FR at 35138, Table 2. In con trast, the more recent data, developed using the "Vanderbilt Method," a method that EPA intends to consider for approval, presents its results as ranges. 75 FR at 35141, Table 4. The differences in the methodologies and the presentation of results make it nearly impossible to surmise whether any change in the chemical composition of CCRs has occurred since the 1999 evaluation. Simply put, EPA has not carried its burden to support a showing that a change has occurred since the 2000 determination.

Response: The Agency acknowledges and appreciates the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0239

- 4 

### 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: 5.6.4 2.2.2 3.3.2.7 3.3.2.3476



### Comment Excerpt Text: In the NODA, EPA noticed new facility and waste management data including the EPA’s Coal Combustion Residuals Impoundment Assessment Reports. (See V.2.b.). These reports consist of the final contractor reports assessing the structural integrity of 374 surface impoundments containing CCRs. [Footnote 3: See http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/index.htm.] EPA assessed all of the known ponds with a hazard potential rating of “high” or “significant,” as reported in the responses provided by electric utilities to EPA’s information requests, as well as additional units identified during field assessments and a large number of previously “unrated” ponds.

According to EPA, these reports were completed by professional engineers “who are experts in
the are a of dam integrity.” [Footnote 4: Id.] The reports were based on a visual assessment of the site, interviews with site personnel, and the review of geotechnical reports and studies related to the design, construction and operation of those impoundments, if such reports were available. The engineering firms also reviewed past state and federal inspections of the impoundments. The contractors rated the impoundments as “satisfactory,” “fair,” “poor,” or “unsatisfactory,” terms commonly used in the field of dam safety.

As described below, the results of the EPA contractors’ inspections indicate a significant level of mismanagement of high and significant hazard ponds and a heightened risk to human health and
the environment that was not known at the time of EPA ’s publication of its proposed rule in June 2010. Therefore EPA should consider all data and findings contained in these inspection reports in its determination as to whether CCR should be listed as a hazardous waste pursuant to 40 C.F.R. § 261.11(a)(3). I n addition, the inspection reports are relevant to the analysis required by section 8002(n) of the Resource Conservation and Recovery Act (RCRA), specifically section 8002(n)(2), which requires the evaluation of “present disposal and utilization practices, ” and section 8002(n)(3), which mandates analysis of the “potential danger, if any, to human health and the environment from the disposal and reuse of such materials.” 42 U.S.C. § 6982(n).

Specifically, in deciding whether to list a solid waste as a hazar dous waste, section 261.11(a)(3) directs EPA to consider a set of eleven factors to determine whether a “waste is capable of posing a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed.” Two of the eleven factors are particularly relevant to the pond inspection reports. Pursuant to section 261.11(a)(3)(vii), EPA is to consider “the plausible types of improper management to which the waste could be subje cted” and section 261.11(a)(3)(iii) directs EPA to consider “the potential of the constituent ... to migrate from the waste into the environment under the types of improper management considered in paragraph (a)(3)(vii).” The pond inspection results describe d below demonstrate that coal ash “is capable of posing a substantial present or potential hazard to human health or the environment” when stored in surface impoundments, especially in light of the documented types of improper management and the reported i nstances of migration of CCR from such impoundments.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under477

subtitle D of RCRA.



### C omment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0239

- 9 

### 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: 5.6.4 2.2.2 3.3.2.3 3.3.2.7 

### Comment Excerpt Text: F. EPA must consider coal ash impoundment inundation maps in evaluating risk to human health
and the environment.

In order to evaluate the risk to human health and the environment from CCR surface impoundments, EPA m ust obtain and assess inundation maps for all high and significant hazard ponds. While some of EPA’s inspection reports include an inundation map, the majority of reports do not. In fact, there appear to be no inundation maps for the high hazard ponds that were found to be in poor condition. The purpose of inundation maps is to identify what areas would be affected by a pond failure. Analysis of these maps would permit EPA to calculate the loss of life threatened by failures of high hazard ponds in specific locations, as well as provide information regarding the environmental threat to drinking water sources, water bodies, wetlands, and other areas by high and significant hazard ponds. EPA could also identify the economic losses and disruptions that would oc cur from the failure of both high and significant hazard dams. This inquiry is required by both sections 8002(n)(2) and (3) of RCRA and sections 261.11(a)(3)(iii) and (vii).

A cursory examination of a few high hazard CCR impoundments points to the urgent need to complete this inquiry and better assess risks from the nation’s 235 high and significant hazard ponds. A failure at all of the following CCR ponds would take a significant number of lives and devastate the adjacent community and its environment. Be cause inundation maps are not easily assessed by the public, EPA must conduct this inquiry and publish the results, which should quantify the threat posed by the impoundments in lives and dollars.

1. Little Blue Run Residual Waste Impoundment, Beaver Coun ty, Pennsylvania

A failure at the 1300

- acre, 400

- foot high Little Blue Run Residual Impoundment would endanger about 50,000 people, according to the Pennsylvania Department of Environmental Protection. [Footnote 39: See http://www.pittsburghlive.com/x/pit tsburghtrib/news/regional/s _604497.hmtl.]. This unlined impoundment is 30 times larger than the pond that failed in Kingston. EPA’s inspection report documents seeps at the pond, and groundwater contamination (arsenic above drinking water standards) has b een found in residential wells near the impoundment. [Footnote 40: Earthjustice, Environmental Integrity Project, Sierra Club. In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and their Environment,” August 2010, available at www.ear thjustice.org/coalash.]478

[See original comment for aerial view of Little Blue Run Residential Waste Impoundment located on the border of Pennslyvania, West Virginia, and Ohio next to the Ohio River]

2. Cardinal Fly Ash Reservoir, Brilliant, Ohio

AEP’s un lined impoundment at its Cardinal Power Plant is the sixth

- largest in the nation. The No. 2 dam reaches a height of 230 feet, with the No. 1 dam rising over 50 feet above it. [Footnote 41: CLOUGH, HARBOUR & ASSOCIATES (CHA), FINAL REPORT,
ASSESSMNET OF DAM SAFETY OF COAL COMBUSTION SURFACE IMPOUNDMENTS, AMERICAN ELECTRIC POWER, CARDINAL POWER PLANTS 5 (2009), http://epa.gov/waste/nonhaz/industrial/special/fossil/surgeys2/aep

- cardinal

- final.pdf.] Although clearly the community below the dams would be devasta ted in the event of a pond failure, there is nothing in the record to quantify the lives lost or damage that would result.

[See original comment for aerial view of Cardinal Fly Ash No.1 Dam and No. 2 Dam]

3. Havana East Pond System, Havana, Illinois

Acc ording to Dynergy, owner of the Havana Power Station, a failure at its high hazard, 4

- cell impoundment system could send toxic coal ash five miles downstream, likely enveloping the immediately adjacent homes and a school that is located within two miles. [ Footnote 42: Kim McGuire, Coal Ash Disposal Rules Vary from State to State, THE SOUTHERN NEWS SERVICES, Jan. 24, 2009, http://www.thesouthern.com/news/article_beb4d263

- d133

- 5820

- 96b4

- ab9e80026126.html.]

[See original comment for aerial view of Havana East Ash Pond System]

4. Asheville Surface Impoundment, Asheville, North Carolina

The unlined surface impoundment at Progress Energy’s Ashville Electric Plant was built in 1964. EPA inspection of the impoundment in May 2009 found it in poor condition. [Footn ote 43: DEWBERRY & DAVID, INC, FINAL REPORT, COAL COMBUSTION WASTE IMPOUNDMENT, DAM ASSESSMENT REPORT, SIT 7, 1982 POND & 1964 POND, PROGRESS ENERGY CAROLINAS, ASHEVILLE, NORTH CAROLINA (2009), available at http://www.epa.gov/osw/nonhaz/industrial/special/ fossil/surveys2/asheville

- final1.pdf.] Among the problems noted in the inspection were the absence of a stability analysis and dam break analysis, the presence of trees and deep

- rooted vegetation on its embankment, and the absence of
erosion

- minimizing rip

- rap. Despite the high population density near the pond, there is no record in the docket of the area that would be inundated by coal ash should the 45

- year old impoundment fail.

[See original comment for aerial view of Asheville Surface Impoundment]

5. Cane Run Ash Basin, Louisville, KY

The unlined coal ash impoundment at Louisville Gas and Electric Company’s Cane Run Power479

Station is located across the street from a residential community. [Footnote 44: CLOUGH, HARBOUR & ASSOCIATES (CHA), FINAL REPORT, ASSESSMENT OF DAM SAFETY OF COAL COMBUSTION SURFACE IMPOUNDMENTS, LOUISVILLE GAS & ELECTRIC COMPANY, CANE RUN POWER STATION app. A (2010), http://www.epa.gov/wastes/nonhaz/industrial/special/fossil/surveys2/eon

- cane

- final.pdf.] This impoundment was built i n 1972 and was not designed or constructed by a professional engineer, nor is the impoundment currently maintained by a professional engineer. [Footnote 45: See US EPA Impoundment database, available at http://www.epa.gov/osw/nonhaz/industrial/special/foss il/surveys/index.htm.] There is no data in the docket quantifying the threat posed to the adjacent neighborhood in the event of a dam
failure.

[See original comment for arial view of Cane Run Ash Basin]

Response: The Agency acknowledges and appreciates the comment. 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.

Section 2.2.4

- Proven damage cases from surface runoff or leachate Total Number of Submissions: 6
Total Number of Comments: 7



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06203

- 15 

### 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: 8.4 

### Comment Excerpt Text:

IV. DAMAGE CASES

EPA suggests that the newly identified "damage cases" may warrant reversal of its final 2000 Regulatory Determination, resulting in the regulation of CCRs under R CRA Subtitle C. [FN 6: One of the eight statutory study factors that EPA must evaluate in determining whether CCRs warrant regulation under RCRA Subtitle C is "documented cases in which danger to human
health or the environment from surface runoff or leach ate has been proved." RCRA § 8002(n)(4). These cases are referred to by EPA as "damage cases." See 75 Fed. Reg. at 35146.] 75 Fed. Reg.
at 35155

- 56. However, the new damage cases, which are limited almost exclusively to older,
unlined units as were the ori ginal damage cases, in no way undermine EPA's original decision in the 2000 Regulatory Determination that the best means to address the damage cases is to "develop national Subtitle D regulations." 65 Fed. Reg. at 32216.480

At the time of the final 2000 Reg ulatory Determination, EPA had identified 14 "proven" damage cases[FN 7: "Proven" damage cases "means those cases with (i) Documented exceedances of primary maximum contaminant levels (MCls) or other health

- based standards measured in ground water at suffi cient distance from the waste management unit to indicate that hazardous constituents have migrated to the extent that they could cause human health concerns, and/or (ii) where a scientific study provides documented evidence of another type of damage to
hu man health or the environment (e.g., ecological damage), and/or (iii) where there has been an administrative ruling or court decision with an explicit finding of specific damage to human health or the environment." 75 Fed. Reg. at 35131.] and 36 "potential " damage cases. [FN 8: Potential damage case means those cases with documented MCl exceedances that were measured in ground water beneath or close to the waste source. In these cases, while the association with CCRs has been established, the documented exc eedances had not been demonstrated at a sufficient distance from the waste management unit to indicate that waste constituents had migrated to the extent that they could cause human health concerns. Id.] 75 Fed. Reg. at 35142. Since that time, EPA has iden tified 13 additional proven damage cases and four more potential damage cases, bringing the total to 27 proven cases and 40 potential damage cases. Id. at 35143. Virtually all of these damage cases involve unlined units that began operation prior to 1990; these cases do not involve the newer, lined units that have commenced operation since that time. See "Evaluation of Coal Combustion Product Damage Cases," Electric Power Research Institute ("EPRI"), July 2010 (EPRI Report No.1 020553) ("EPRI Damage Case Re port").

The proposed Subtitle D requirements

- including the liner, groundwater monitoring, corrective action and structural stability requirements

- would be fully effective in addressing EPA's concerns about the damage case sites without the attendant adverse impacts of the Subtitle C option. Therefore, the new damage cases justify neither the reversal of EPA's 2000 final Regulatory Determination nor the resulting regulation of CCRs under Subtitle C.

APS also feels it is important to emphasize that it is inappropriate for EPA to include potential damage cases in its evaluation of the appropriate regulatory option for CCRs. The Bevill Amendment provides that, in considering the "documented cases" of danger from the management of CCRs, the Agency was onl y to evaluate those instances where such danger "has been proved." RCRA § 8002(n)(4) (emphasis added). EPA has acknowledged this statutory limitation, observing in its final 2000 Regulatory Determination that, although the potential damage cases may pose a "potential danger" to human health and the environment in some circumstances, they do not "satisfy the statutory criteria of documented, proven damage cases because damage to human health or the environment has not been proven ...." 65 Fed. Reg. at
32225. Therefore, it is inconsistent with the plain language of the statute for EPA to include the potential damage cases in its assessment of the "documented cases" of danger to human health and the environment from the management of CCRs. EPA cannot use the po tential damage cases as the foundation for a reversal of its final 2000 Regulatory Determination.

Response: The Agency acknowledges and appreciates the comment. The commenter is481

referred to Unit XI of the preamble discussion for a complete assessment of the CCR damage cases and the Agency’s rationale for identifying both potential and proven damage cases.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 14 

### Organization 1 

### : Earthjustice et. al. 

### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group
Classificati on: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.2.1 2.2.2 2.2.3 2.2.5 2.2.6 2.2.7 2.2.8 

### Comment Excerpt Text: In this section of our comments, each factor of section 8002(n) is evaluated in light of the considerable evidence and recent data that have come to light since EPA’s 2000 Final Determination. [ ICF COMMENT ANALYSIS NOTE: for SECTION III. A, which starts page 12 of original comment #6315.1 through SECTION III. H, which ends on page 153 of original
comment #10495.1

-- each evaluates one of the eight Befill factors; those comments are usually coded to relevant issues within the issue outline instead of directly to 2.2.1 through 2.2.8 ] In section 8002(n), Congress instructed EPA to examine a wide range of factors: volume of coal ash; current disposal and use; potential danger from mismanagement, documented cases of proven threats to health and the environment, alternatives to current disposal, the cost of such alternatives, the impact of regulation on t he use of coal and other resources, and current and potential reuse of coal ash. Reexamination of all eight study factors reveals that regulation of CCRs under RCRA subtitle C of RCRA is clearly warranted.

Response: The Agency acknowledges and appreciate s the comment. 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.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 57 

### 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: 8.2 

### Comment Excerpt Text: D. Analysis of the Documented Cases in which Danger to Human Health or the
Environment fr om Surface Runoff or Leachate has been Proved from CCR Mismanagement Indicates Unequivocally that Federal Oversight Pursuant to Subtitle C of
RCRA is Warranted.

In section 8002(n)(4) of RCRA, Congress required EPA to take into account the “documented482

case s in which danger to human health or the environment from surface runoff or leachate has been proved.” [Footnote 292: 42 U.S.C. § 6982(n)(4).] To perform this analysis, EPA has developed over two decades an elaborate system of cataloging potential and prov en “damage” cases. While these comments will show that the number of proven and potential damage cases, as defined by EPA, have increased substantially since the 2000 Determination, we also assert that EPA’s interpretation of this requirement is unlawful, and if pursued, will lead to results contrary to RCRA.

In section 8002(n)(4), Congress required EPA to assess cases where “danger,” not “damage,” has been proved. The distinction between danger and damage is critical

— danger speaks to the threat posed to h ealth or the environment, while damage represents harm that has already occurred. The clear interest of Congress in RCRA is the prevention of “damage” through the identification of danger. This is apparent in the language of sections 7002 and 7003 of RCRA. [Footnote 293: 42 U.S.C. §§ 6972 and 6973.] In both sections, Congress authorized citizens and EPA, respectively, to bring suit in the event that solid waste handling, storage, treatment, transport or disposal “ may present an imminent and substantial enda ngerment of human health or the environment.” [Footnote 294: 42 U.S.C. §§ 6972(a)(1)(B) and 6973(a).] (Emphasis added.) Congress was interested foremost in prevention of harm (i.e. in danger, not damage). Thus to file suit under either section, neither dam age nor even a release of waste was required. Courts have in fact found that imminence does not require a showing that actual harm will occur immediately so long as risk of threatened harm is present. [Footnote 295: Raytheon Co. v McGraw

- Edison Co., Inc, 9 79 F. Supp 858 (E.D. Wis. 1997).] Similarly, the First Circuit Court of Appeals concluded that citizens may file suit under section 7002 when there is “a reasonable prospect of future harm ... so long as the threat is near

- term and involves potentially ser ious harm.” [Footnote 296: Maine People's Alliance v. Mallinckrodt, Inc. 471 F. 3d 277 (1st Cir. 2006).]

That said, there is a wealth of evidence that both proven “danger” and damage has occurred at a great many CCR storage, disposal and reuse sites. The following section discusses such evidence and its implications. In sum, the dramatic increase in the number of damage cases, the severity of the harm occurring at the sites, and their distribution throughout the U.S., particularly in the states that genera te the greatest volumes of CCRs, demonstrate the need for subtitle C regulation.

Management of CCR by states in the absence of minimum safeguards has contaminated water supplies, harmed or endangered human health, and harmed biota and the environment thro ughout the US. As of September 2010, some 137 damage sites in 35 states have been either documented by the Environmental Integrity Project, Earthjustice and Sierra Club. [Footnote 297: See Envtl. Integrity Project & Earthjustice, Out of Control: Mounting D amages from Coal Ash Waste Sites (Feb. 24, 2010) available at http://www.earthjustice.org/sites/default/files/library/reports/ej

eipreportout

- of

- controlfinal. pdf; Envtl. Integrity Project, Earthjustice, & Sierra Club, In Harm’s Way: Lack of Federal Coal A sh Regulations Endangers Americans and their Environment (Aug. 26, 2010) http://www.earthjustice.org/sites/default/files/files/report

- in

- harms

- way.pdf [Hereinafter EIP, Earthjustice, and Sierra Club are collectively referred to as “EIP,” and the
reports ar e referred to collectively as “EIP reports.”] or identified as proven or potential damage sites by EPA. [Footnote 298: 2007 EPA Damage Case Assessment. ] This is more than 17 times the number of damage cases identified in EPA’s 1999 Report to Congress on Wa stes from the
Combustion of Fossil Fuels and a three

- fold increase from the number of damage cases483

acknowledged in EPA’s 2000 Regulatory Determination on these wastes.

The majority of the coal combustion waste damage cases identified by EPA and public int erest groups reveal that current disposal practices are contaminating ground and surface waters with toxic pollution. CCR damage cases are not an artifact of past practices. The contamination is pervasive, occurring to date in at least 35 states at levels that have exceeded health

- based standards in the large majority of instances. The pollution from many CCR disposal sites is migrating off

- site and poses a grave threat to drinking water sources and our rivers, lakes, and
streams. This contamination has rea l consequences for Americans, and many citizens living near CCR disposal sites testified about the adverse health effects they experience at the public hearings held by EPA in conjunction with this proposed rule. For the most part, states have failed

to ta ke action to halt and clean up contamination.

Yet EPA’s investigation of damage cases is woefully inadequate. In light of EPA’s statutory mandate, EPA must investigate and account for the overwhelming data documenting CCR damage cases across the United St ates. These data irrefutably demonstrate that subtitle C regulations are necessary to protect public health and the environment.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Unit XI of today’s preamble for a discussion o f the assessed damage cases involving

CCR.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06352

- 5 

### Organization 1 

### : Dayton Power & Light Company (DP&L) 

### Commenter 1 : JoAnne Rau Commenter Type: Electric Utility Company
Classific ation: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.2.3 

### Comment Excerpt Text: Little or No Hard Evidence Exists That the Potential Danger and Documented Proven Damage Cases Would Support Listing. (Criteria 3 and 4)

USEPA cites several of what it refers to as ':proven damage cases" as support for its proposal to regulate CCRs as a subtitle C special waste. [FN 6: 75 Fed. Reg. at 35234.] However, a review of these cases shows that a majority of the sites to w hich USEPA refers can only be classified as former sand and gravel pits or other unlined facilities that were used for the historic disposal of CCRs (some dating back to the 1940's and 1950's) under practices then considered acceptable.
Such methods are no t now standard practice and therefore are not representative of more recent or today's management strategies which are employed at most, if not all CCR disposal facilities. In another instance where the agency references a location where CCRs had been plac ed, as USEPA puts it, "under the guise of 'beneficial use'"

- the Battlefield Golf Course, USEPA's own484

April 2010 Final Site Inspection Report seems to contradict the agency's position that this site is a proven case of danger to human health or the enviro nment. Specifically, this report concluded
that:

(i) metals contaminants were below MCLs and Safe Drinking Water Act action levels in all residential wells that EPA tested; (2) (sic) the residential well data indicate that metals are not migrating from th e fly ash to residential wells; and (iii) there are no adverse health effects expected from human exposure to surface water or sediments on the Battlefield Golf Course site as the metal concentrations were below the ATSDR standards for drinking water and s oil. Additionally, the sediments samples in the ponds were below EPA Biological Technical Assistance Group screening levels and are not expected to pose a threat to ecological receptors. [FN 7: 75 Fed. Reg. at 35155.]

Response: The Agency acknowledges an d appreciates the comment. The commenter is
referred to Unit XI of today’s preamble for a discussion o f the assessed damage cases involving

CCR.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08212

- 5 

### Organization 1 

### : Utility Water Act Group 

### Commenter 1 : Elezabeth E. Aldridge Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.4.1.3.2 4.4.5.2.1 

### Comment Excerpt Text: II. Placing “Surface Impoundment Integrity” Requirements in NPDES permits is Not Consistent
with the Bevill Amendment

To be consistent with Congress’s intent and EPA’s findings under the Bevill Amendment, structural integrity requirements for ponds and impoundments should be implemented under
RCRA Subtitle D and not through the CWA NPDES program. As described in detail in USWAG’s comments, Congress added the Bevill Amendment to RCRA to deal with the regulation of CCRs. Congress included no special provisions for CCR regulation under the CWA. In contrast, the Bevi ll Amendment required a comprehensive study of the environmental risks (including those posed by documented cases of environmentally dangerous surface runoff or leachate) associated with CCR storage, treatment, and disposal.

Given Congress’s special trea tment of CCRs under RCRA, and the pending regulatory proposal, it makes sense to develop and implement structural integrity requirements for ponds and impoundments holding CCRs through the RCRA Subtitle D program. To split off structural integrity requirem ents as special provisions under NPDES permits and have them administered by a separate regulatory entity

-- while another entity addresses structural and operational requirements of CCR landfills through its RCRA powers

-- would be administratively ineffi cient485

and not in keeping with Congressional intent.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08246

- 8 

### Organization 1 

### : Stinson Morrison Hecker LLP on behalf of Kansas City Board of Public
Utilities 

### Commenter 1 : Parthenia B. Evans and Dennis Lane Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.2.3 

### Comment Excerpt Text:

Factors Three and Fou r Present A Number of Open Questions that Call for Resolution and Clarification, Rather than for Overinclusive Regulation The next Bevill factor analyzed, documented cases of proven health or environmental danger, addresses cases involving disposal in unl ined units, the Pennsylvania and TVA cases noted above, and cases involving the “large

- scale placement, akin to disposal, of CCRs, under the guise of ‘beneficial use.’” 75 FR at 35155/2. Addressing the latter point, clarification of what are permissible be neficial uses would provide certainty for the industry, but the lack of clarity at this point is not grounds for imposing subtitle C regulations. As the Notice recognizes, 75 FR at
35163 65, the question of what uses should be considered beneficial raises a panoply of issues that have not been fully ventilated, much less resolved. Further, the issues raised do not readily lend themselves to a single nationwide answer. See id . at 35163/3 (noting that effects depend "on the characteristics of the CCR, the amo unt of material placed, and the site conditions"). Despite recognizing that variable conditions affect whether a given use is hazardous in individual circumstances and "the many beneficial use opportunities for CCRs," id. 35164/3, the Notice favors a prohibition against any unencapsulated CCR use with an opportunity for individual projects to seek a waiver. Id . at 35155/1. Either an outright prohibition or removing the Bevill exemption for unencapsulated use is likely, how ever, to stifle innovation, both by discouraging development of new uses and by increasing the time and expense of their implementation. If, after review of the responses to the questions raised, EPA still believes that federal regulation is needed, the be tter course would be to set minimum standards that must be met, and then allow the States to apply those standards in light of the local conditions presented. Likewise, with regard to the damage cases resulting from unlined landfills or from stability

pro blems, there seems very little, if any, value to imposing hazardous waste standards that address a chemical issue, not the physical problems associated with the damage cases. If anything, the better course might be to institute dam stability testing and li near requirements in those States where such requirements are not already in place. Such an approach would limit any variations in implementation and enforcement of cures to the problems that caused these damage

cases. Aside from the disconnect in imposin g regulations that address a chemical issue in response to physical stability problems, the Notice lacks support for the need for such regulations. The Notice states "the potential exists for the chemical characteristics of certain CCRs . . . to486

increase, which could result in increases in releases from management units. . .." 75 FR at 35153/2. To support this proposition EPA relies on an apples to oranges comparison based on references to 1999 CCR chemical data juxtaposed with CCR chemical data developed o ver the past few years. First, the two studies use different methodologies to reach different measurements of the chemical characteristics. The 1999 data, developed using EPA's Toxicity Characteristic Leaching Procedure (TCLP), an approved 40 C.F.R. Part 1 36 Method, presents its results as mean values. 75 FR at 35138, Table 2. In contrast, the more recent data, developed using the "Vanderbilt Method," a method that EPA intends to consider for approval, presents its results as ranges. 75 FR at 35141, Table 4 . The differences in the methodologies and the presentation of results make it nearly impossible to surmise whether any change in the chemical composition of CCRs has occurred since the 1999 evaluation. Simply put, EPA has not carried its burden to support a showing that a change has occurred since the 2000 determination.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Unit XI of today’s preamble for a discussion o f the assessed damage cases involving
CCR, as well as the response to comment document that addresses damage cases which can be
identified in the introduction section of the document.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0211

- 11 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG), et al. 

### C ommenter 1 : James Roewer Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 8.9 

### Comment Excerpt Text: V. The Alleged Damage Cases Presented By Environmental Groups Are Not Proven And Do Not Support The Subtitle C Option

The NODA identifies two reports prepared by environmental groups that, when taken together, allege that 70 CCR sites are “damage cases” that should be considered in the CCR rulemaking. The first repo rt, entitled Out of Control: Mounting Damages From Coal Ash Wastes Sites (“Out of Control”), [Footnote 42: Environmental Integrity Project, Earthjustice, Out of Control: Mounting Damages From Coal Ash Waste Sites (Feb. 2010) (EPA

- HQ

- RCRA

- 2011

- 0392

- 0005).] presents 31 alleged CCR damage cases that EPA explains were not included or recognized as proven damage cases in EPA’s July 2007 Coal Combustion Waste Damage Case Assessments (“EPA 2007 Report”). 76 Fed. Reg. at 63256. The second report, entitled In Harm’s Way: Lack Of Federal Coal Ash Regulations Endangers Americans And Their Environment (“In Harm’s Way”), presents an additional 39 alleged CCR damage cases. [Footnote 43: Environmental Integrity Project, Earthjustice, Sierra Club, In Harm’s Way: Lack of Fed eral Coal Ash Regulations Endangers Americans And Their Environment (Aug. 2010) (EPA

- HQRCRA

2011

- 0392

- 0006).] As discussed below, nothing presented in the alleged damage cases in Out of Control or In Harm’s Way support the regulation of CCRs under RCRA Sub title C or undermine EPA’s original decision in the 2000 regulatory determination that the best means to address the487

damage cases is to “develop national Subtitle D regulations.” 65 Fed. Reg. at 32216.

Similar to past attempts by environmental groups to i nflate the number of proven CCR damage cases in this rulemaking, the overwhelming majority of the allegations regarding the 70 sites are replete with errors, inaccuracies and misstatements and, most importantly, fail to provide the requisite “test of proof

” documentation necessary for EPA to characterize virtually any of the sites as proven damage cases. EPA should therefore review the allegations with extreme care for accuracy and with a skeptical eye, given the propensity for the allegations to contain ge neral accusations of damage without the requisite degree of proof to substantiate the claims. Indeed, as EPA well knows, prior to initiating this rulemaking, the Agency gathered or received information on 135 alleged damage cases, many of which were submit ted to EPA by the same environmental organizations that prepared Out of Control and In Harm’s Way. See 75 Fed. Reg. 35128, 35147 (June 21, 2010). After evaluating these earlier allegations, close to half (62) were dismissed “because there was little or no information supporting the concerns identified.” Id. Another six were outside the scope of the rulemaking. Id. Of the remaining 67 allegations, 24 were identified as proven damage cases, but this included the 14 proven cases already identified
in the 2000 regulatory determination. Id. The point is that the track record of the validity of these environmental groups’ damage case allegations is astonishingly poor and, as detailed below, the additional allegations proffered by these same groups in Out of Contro l and In Harm’s Way are no exceptions to this poor record.

A. Statutory Conditions Related to Reviewing the Alleged Damage Cases

As an initial point, it is important to make clear that it is inappropriate for EPA to rely on damage case allegations in any final rulemaking for CCRs before the Agency has fully evaluated the allegations and provided an opportunity for public hearing and comment on EPA’s initial conclusions. The plain text of the Bevill Amendment commands that this process be followed. Specifi cally, before making any final regulatory determination, EPA is required to submit its initial recommendation, along with the reasons for this recommendation, in a report to Congress, and to provide an opportunity for public comment and hearings on these i nitial findings. See RCRA § 3001(b)(3)(C). Among the Bevill Amendment study factors that must be addressed in the report to Congress is EPA’s evaluation of the “documented cases in which danger to human
health or the environment from surface runoff or leac hate [from CCRs] has been proven.” RCRA § 8002(n).

Therefore, even assuming that EPA is authorized to issue a new regulatory determination for CCRs, any proven damage cases that have been considered by EPA as part of that determination must be the subject of notice and comment. The mere identification of the alleged damage case reports in the NODA cannot serve as substitute for EPA’s statutory obligation under the Bevill Amendment for the Agency to evaluate and make an initial finding as to whether allegat ions are proven damage cases and to provide the public with opportunity to review and comment on the Agency’s initial findings. As explained above, past experience underscores the importance of this statutorily prescribed vetting process, as many of the fo rmer allegations of damage cases identified by environmental groups have been shown to be without merit and have been dismissed by EPA as unsubstantiated and/or incorrect.488

Further, before addressing the additional alleged damage cases, it is important to emphasize that it is inappropriate for EPA to include the so

- called “potential” damage cases in its evaluation of the appropriate regulatory option for CCRs. As noted above, the Bevill Amendment provides that, in considering the “documented cases” of dange r from the management of CCRs, the Agency was only to evaluate those instances where such danger “ has been proved .” RCRA § 8002(n)(4) (emphasis added). EPA has acknowledged this statutory limitation, observing in its final 2000 regulatory determination tha t, although the potential damage cases may pose a “potential danger” to human health and the environment in some circumstances, they do not “satisfy the statutory criteria of documented, proven damage cases because damage to human
health or the environment has not been proven.” 65 Fed. Reg. at 32225. Therefore, it is inconsistent with the plain language of the statute for EPA to include any so

- called “potential” damage cases in EPA’s assessment of the “documented cases” of danger to human health and the

env ironment from the management of CCRs. As a consequence, it would be unlawful for EPA to consider the alleged “potential” damage cases in Out of Control or In Harm’s Way as support for any decision to reverse its final 1993 or 2000 regulatory determination. The alleged “potential” damage cases are simply irrelevant to this rulemaking.

B. The Alleged Damage Cases Do Not Have Merit

While it is EPA’s statutory responsibility to make an initial assessment as to whether any of the alleged damage cases are prove n damage cases [Footnote 44: “Proven damage cases are those with (i) documented exceedances of primary MCLs or other health

- based standards measured in ground water at sufficient distance from the waste management unit to indicate that hazardous
constituen ts have migrated to the extent that they could cause human health concerns, and/or (ii) where a scientific study demonstrates there is documented evidence of another type of damage to human health or the environment (e.g., ecological damage), and/or (iii) where there has been an administrative ruling or court decision with an explicit finding of specific damage to human health or the environment. In cases of comanagement of CCWs with other industrial waste types, CCWs must be clearly implicated in the repor ted damage.” EPA, Coal Combustion Waste Damage Case Assessments 2 n.3 (July 2007). In determining whether evidence of ecological damage from a CCR unit constitutes a damage case, EPA stated in the proposed 2010 CCR rulemaking that it “now believes that eco logical damages warranting state environmental response are generally appropriate for inclusion as damage cases,” such as information leading a state to issue fish advisories. 75 Fed. Reg. at 35147.] and to provide public with notice and opportunity to com ment on its initial findings, USWAG has conducted its own initial review of the allegations. To do this, USWAG retained Kelron Environmental (“Kelron”) to perform a technical assessment of the 70 alleged damage cases identified in the above reports.

In co nducting its technical assessment, Kelron reviewed all of the allegations presented in Out of Control and In Harm’s Way, including those allegations such as secondary MCLs and other non

health based criteria and advisories that are ultimately irrelevant to the analysis because they cannot serve as the basis for categorizing a site as a proven damage case. These allegations were taken at face value for the purpose of conducting the review and evaluated against the test of proof criteria used by EPA in making damage case assessments. Kelron performed this comprehensive assessment for purposes of completeness and to preclude any suggestion that it was selective in its review of the allegations. Importantly, this comprehensive review, including489

Kelron’s inclusio n of non

- health based allegations in its technical assessments, reveals that the vast majority of the alleged damage cases in Out of Control and In Harm’s Way do not, even on their face, implicate potential adverse impacts to human health or the environmen t. Such allegations clearly are insufficient under EPA’s test of proof criteria to demonstrate that a particular site meets the definition of a proven damage case. In the end, only those allegations that meet EPA’s test of proof criteria are relevant in de termining whether a site has the potential to meet EPA’s definition of a proven damage case. [Footnote 45: The Kelron Report appropriately did not evaluate allegations from sources involving NDPES permitted outfalls. The
Bevill Amendment directs EPA to eva luate documented cases of proven damages from “surface runoff or leachate,” which does not encompass authorized parameters under NPDES permits which are technically based and would not constitute a “proven damage.” See RCRA § 8002(n). Further, RCRA express ly excludes NPDES discharges from RCRA jurisdiction, and hence alleged surface water damage from an NPDES permitted outfall would not and could not be addressed by future RCRA regulations. See RCRA § 1004(27) (excluding industrial point source discharges s ubject to NPDES permitting from RCRA’s statutory definition of solid waste). Moreover, from a “test of proof” perspective, allegations based simply on the level of constituents collected from an NDPES outfall cannot meet the definition of a proven damage

c ase because such allegations do not constitute a scientific study demonstrating “documented evidence of . . . damage to human health or the environment” or an “administrative ruling . . . with an explicit finding of specific damage to human health or the e nvironment.” EPA, Coal Combustion Waste Damage Case Assessments 2 n.3 (July 2007).] A copy of Kelron’s report, including its technical assessments for all 70 of the alleged damage cases, is attached to these comments as Attachment A (“Kelron Report”).

For each case where Kelron determined that the allegations for a particular site were facially insufficient to meet the test of proof criteria necessary to be evaluated as a proven damage case, Kelron identified the deficiencies in the allegations and conclud ed that the allegations did not support characterization of the site as a proven damage case. In those cases where the allegations regarding a particular site could potentially be viewed as meeting the test of proof criteria for characterizing the site as a proven damage case, Kelron sought to obtain additional background information regarding the site from facility owners/operators or from state regulatory bodies to better assess the underlying validity, accuracy or comprehensiveness of the allegations. Th e supplemental information obtained from these sources varied, but generally included more detailed or up

- to

- date information regarding the site, including the status of any regulatory and remediation actions, as well as corrections to inaccuracies and/or misinformation with respect to specific facilities.

Based on the above analysis, Kelron concluded that, of the 70 damage cases alleged in In Harm’s Way and Out of Control, only 6 contained allegations that could be viewed as meeting EPA’s test of proof cr iteria for potentially characterizing the site as a proven damage case. Moreover, one of these cases had already been determined by EPA to be a proven damage case, effectively reducing to 5 the number of cases, out of a total of 70, that could even potenti ally be viewed as additional proven damage cases. Further, 12 of the 70 alleged “new” cases were already previously addressed in EPA’s 2007 damage case assessment, [Footnote 46: EPA, Coal Combustion Waste Damage Case Assessments (July 2007) (EPA

- HQ

- RCRA

- 20 06

- 0796

- 0015).] with five of the sites already rejected by EPA due lack of evidence of damage or lack of evidence490

of damage uniquely associated with CCRs, and seven of the sites characterized as indeterminate due to insufficient information. The Kelron Rep ort found that no new information regarding these 12 sites was contained in the above reports warranting their designation as proven damage

cases.

For the remaining 6 alleged damage cases where the allegations, taken at face value, could be
viewed as meet ing EPA’s test of proof criteria and thus potentially viewed as proven damage cases (including the previously designated proven damage case), Kelron found that these sites fell into two categories: (1) sites that are no longer active and where the alleged damages have been fully remediated (indeed, in one case the alleged impact surface water body is reported to be restored to a quality superior to other non

- impacted areas), and (2) sites involving circumstances where the alleged damages are currently under going remediation with federal and/or state oversight. Therefore, the regulation of CCRs under the Subtitle C option (or even EPA’s proposed Subtitle D option) would have no impact on addressing these sites, as they are all already fully remediated or are undergoing active remediation. Further, as discussed below, EPA’s proposed Subtitle D regulations would be just as effective as the Subtitle C option in preventing any future CCR damage cases.

It also is important to emphasize that Kelron is not alone in identifying significant inaccuracies and outright errors in the vast majority of the alleged damage cases identified Out of Control and In Harm’s Way. USWAG understands that state environmental protection agencies, who have
first

- hand knowledge of the many of the alleged damage case sites, also will be commenting on the errors in the above reports. For example, the Pennsylvania Department of Environmental Protection (“PADEP”) submitted comments on last summer’s CCR proposal with respect to the damage case a llegations in Out of Control for four facilities located in the southwest region of the state. USWAG understands that PADEP is updating these comments to address all the alleged damage cases identified in Out of Control and In Harm’s Way in Pennsylvania, b ut it is worth noting that even in its initial comments on the damage case allegations in Out of Control, PADEP explained that “[s]ince the EIP report did not contain standard scientific documentation, the Department has responded based on a scientific rev iew of each facility’s data and the Department’s familiarity of the sites and their groundwater data and impacts.” Commonwealth of Pennsylvania Department of Environmental Protection Southwest Region, Review of the Environmental Integrity Project and Earth justice Report: “Out of Control: Mounting Damages From Coal Ash Waste Sites”, (October 13, 2010). PADEP “reviewed and responded to each specific allegation point by point” and concluded, after a “methodical, organized and scientific review” of its data, th at “the allegations regarding groundwater and surface water contamination by Primary MCL’s are unfounded.” Id.

C. The Proposed Subtitle D Controls Will Address the Alleged Risks Identified in Environmental Group Reports

In addition to the fact that virt ually all of the allegations in Out of Control and In Harm’s Way fail to demonstrate that any of the sites meet EPA’s definition of a proven damage case, the concerns expressed in those reports involve alleged damage to surface and groundwater from
CCR dis posal units that the proposed Subtitle D controls are specifically designed to address. EPA has stated repeatedly that the standards for CCR disposal units are identical under both the491

Subtitle C and Subtitle D options (75 Fed. Reg. at 35213), with both pr oposed regulatory programs requiring liners and leachate collection systems for new disposal units and lateral expansions of existing units, as well as the retrofitting of existing CCR impoundments. See e.g.,
id. at 35243

- 45 (proposed 40 C.F.R. §§ 257.70

- . 72). Further, under the Subtitle D option, existing CCR disposal units would be subject to groundwater monitoring standards that will allow for the early detection of any groundwater contamination from both lined and existing unlined units. Id. at 35246 (p roposed 40 C.F.R. § 257.90). Finally, the Subtitle D option would impose structural integrity requirements on all CCR surface impoundments, thus addressing the additional concern with the potential structural failure of such units that served as the basis for identifying the TVA Kingston facility and Martin’s Creek Power Plant as proven damage cases.
Id. at 35243

- 45 (proposed 40 C.F.R. §§ 257.71(b)

- (f), 257.83). While the Subtitle D regulations will be effective in preventing future damage cases, as explain ed above, any of the alleged damage cases that EPA may ultimately conclude are proven damage cases already are being properly remediated under state and/or federal oversight.

The vast majority of alleged damage cases identified in Out of Control and In Ha rm’s Way do not present adequate information to even be considered as meeting the test of proof criteria necessary for EPA to evaluate the sites as proven damage cases. The small number of alleged damage cases that, based on the allegations taken at face v alue, potentially meet the criteria for evaluation as a proven damage case, are either inactive units where remediation is complete and/or undergoing active remediation. Finally, the proposed Subtitle D regulations will prevent future damage cases. Therefo re, nothing presented in Out of Control and In Harm’s Way supports the authors’ call for the regulation of CCRs under RCRA Subtitle C when EPA’s proposed Subtitle D option will effectively address future issues associated with their purported

concerns rega rding CCR management. As USWAG stated in its initial comments on the CCR proposal, given the underlying goal of the Bevill Amendment that EPA avoid the Subtitle C regulation of CCRs “if at all possible” (Envt’l Def. Fund v. EPA, 852 F.2d 1309, 1314 (D.C.Ci r. 1988)), there is no basis for EPA to rely on the damage case allegations in the above reports as the basis for pursuing the Subtitle C option

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Unit XI of today ’s preamble for a discussion o f the assessed damage cases involving

CCR.

Section 2.2.5

- Alternatives to current disposal methods Total Number of Submissions: 5 Total Number of Comments: 6



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 04001

- 9 

### Organization 1 

### : Coresco, LLC 

### Commenter 1 : Carrie D. Lilly Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:492

Other Sections: 2.2.6 2.2.7 9.5.2 

### Comment Excerpt Text: 3. The Rule fails to thoroughly evaluate the economic impact upon the coal industry

As set forth in the Rule, three of the eight factors that should be analyzed in deciding whether to maintain the Bevill exemption for CCRs are: (i) alternatives to current disposal methods, (ii) the

cost of such alternatives, and (iii) the impact of the alternatives on the use of coal and other natural resources. Without limiting our objections to the analysis set forth in the Rule for each of the eight factors, we specifically note our objections to the analysis of the said three factors. The Rule states that "[.1]here arc no meaningful disposal alternatives other than land disposal" and erroneonsly asserts that "[t]he alternative disposal methods mentioned above [i.e., land disposal] are not expected to impact the usc of coal or other natural resources," The estimated economic impacts set forth in the Rule are based primarily upon projected costs to the electric utility industry, The Rule fails to recognize the costs to the mining industry associated with changes to the criteria for beneficial use and the potential changes affecting unencapsulated uses, If alternative methods are required (such as the usc of liners and caps), the cost to produce coal will increase, causing the usc of coal to decrease if ot her forms of energy become less costly in comparison, Additionally, if alternative methods are required, recent increases in the cost for calcareous materials (resulting from federal legislation directing funding on road construction and repair projects) w ill further increase the cost to produce coal, thereby decreasing its marketability and use, Implementation of the Rule should be suspended and a thorough analysis of the impact of the Rule upon the mining industry should be performed, including an analysi s of the costs associated with increased regulation, increased permitting and compliance requirements, and increased cost of labor and materials, including costs associated with composite liners

,

Response: The Agency acknowledges and appreciates the comme nt. The commenter is also referred to Unit XII of the preamble for a discussion of the cost benefit analysis supporting this rule. Furthermore, the commenter is referred to the response to comment document supporting the cost benefit analysis.



### Commen t Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 14 

### 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: 2.2.1 2.2.2 2.2.3 2.2.4 2.2.6 2.2.7 2.2.8 

### Comment Excerpt Text: In this section of our comments, each factor of section 8002(n) is evaluated in light of the considerable evidence and recent data that have come to light since EPA’s 2000 Final Determination. [ ICF COMMENT ANA LYSIS NOTE: for SECTION III. A, which starts page 12 of original comment #6315.1 through SECTION III. H, which ends on page 153 of original493

comment #10495.1

-- each evaluates one of the eight Befill factors; those comments are usually
coded to relevant iss ues within the issue outline instead of directly to 2.2.1 through 2.2.8 ] In section 8002(n), Congress instructed EPA to examine a wide range of factors: volume of coal ash; current disposal and use; potential danger from mismanagement, documented cases of proven threats to health and the environment, alternatives to current disposal, the cost of such alternatives, the impact of regulation on the use of coal and other resources, and current and potential reuse of coal ash. Reexamination of all eight study fa ctors reveals that regulation of CCRs under RCRA subtitle C of RCRA is clearly warranted.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06352

- 6 

### Organization 1 

### : Dayton Power & Light Company (DP&L) 

### Commenter 1 : JoAnne Rau Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.2.6 

### Comment Excerpt Text: Regulatory Alternatives and the Cost Impacts of Those A lternatives Do Not Support Listing. (Criteria 5 and 6)

As part of its Regulatory Impact Analysis (RIA) for the proposed rule, USEPA has estimated the costs and benefits for each of the regulatory alternatives presented in the proposal, including the
RCRA subtitle C option. [FN 8: 75 Fed. Reg. at 35215.] The comparison assesses the expected costs and anticipated benefits under three different impact scenarios for the beneficial use of CCRs (1

- increased beneficial use of CCRs resulting from regulation under RCRA subtitle C; 2

- decreased beneficial use of CCRs based on stigma and possible use restrictions under state regulation and private sector standards resulting from regulation under RCRA subtitle C; and 3

- no changes to the current beneficial use of CCRs ).

USEPA's own cost

- benefit assessment is entirely driven by the assumption that recycling rates will increase under subtitle C. In fact, according to USEPA's Table 10 on page 35216 of the June 21, 2010 Federal Register notice, the assumed future increase in CCR beneficial use accounts for between 96.8% and 82.6% of the total regulatory benefits assigned to the subtitle C option. Absent this assumed increase in beneficial reuse (either a decline in the beneficial use of CCRs or no change) the costs of subt itle C regulation vastly outweigh the benefits, as shown on Table 11 and Table 12 respectively resulting in a negative net benefit and benefit/cost ratios either negative or less than one.

These results are further suspect when one considers the assumptio ns USEPA uses to develop the anticipated value of avoided impoundment failure cleanup costs. Under the subtitle C option, the494

agency includes in the regulatory benefits a present value for CCR Impoundment Failure Cleanup Costs Avoided of between $1.762 bil lion and $16.732 billion (assuming increased beneficial use). [FN 9: 75 Fed. Reg. at 35216.] USEPA explains that these values were based on information developed from the 2009 mail survey of 584 CCR impoundments operated by the electric utility industry an d the number of releases reported. [FN 10: 75 Fed. Reg. at 35214.] As described in the RIA, the agency only used those releases which it consider to be significant and given what it considers to be limited data, attempts to quantify the avoided costs of fu ture failures. One of the failure scenarios considered by the agency in this analysis is the assumed failure rate between 10% and 20% within the next 20 years for 96 high

- risk CCR impoundments identified to be at least 40 feet tall and at least 25 years ol d. USEPA provides scant information to support this assumed failure rate and based on the rarity of significant CCR impoundment failures and the high level of oversight given to impoundments by electric utilities, it is likely to drastically overstate the probability of future events and therefore the avoided cleanup cost
benefits.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to the cost benefit analysis discussed in Unit XII of the preamble as well as all other supporting documentation located in the docket supporting the cost benefit analysis.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08246

- 9 

### Organization 1 

### : Stinson Morrison Hecker LLP on behalf of Kansas City Board of Public
Utilities 

### Commenter 1 : Parthenia B. Evans and Dennis Lane Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.4.1 10.4.3 2.2.6 2.2.8 2.2.7 

### Comment Excerpt Text: Factors Five through Eight: the Regulatory Choice made Will Affect Beneficial Uses with the Result that the Costs Associated with any of the Proposed Rule Changes Far Outweigh the Projected Benefits The remaining four Bevill factors

– alternatives to curr ent disposal methods, cost of such alternatives, impact of alternatives on use of coal and other natural resources, and current and potential use of CCRs

– are interrelated. 75 FR at 35156. The Notice takes the sanguine view that a rule change would have n o effect on the use of coal and other natural resources, and would likely lead to increased beneficial uses of CCRs even under the subtitle C option. Id . On the latter point, the Notice downplays the potential stigma associated with CCRs’ being designated as hazardous ( i.e. , "special”) waste, stating the beneficial use of CCRs “would not be affected by today’s proposed rule in any case, regardless of the option taken.” 75 FR at 35161/3. But the evidence suggests that this expectation is unrealistic from bot h a legal and a factual view. From a legal standpoint, it seems clear that a designation of CCRs as hazardous or special waste would likely halt beneficial use production in many, if not most, States given that the law in Kansas and other States “prohibit s the land disposal of any RCRA hazardous waste.” KDHE Comments at 2; see 75 FR at 35156/2 (same for other States). This follows from the factual495

problem with EPA’s sanguine view, viz. , currently beneficial uses account for only 37% of all CCRs (up to 45% if minefills are included), id. at 35156/1

- 2, despite a dramatic increase in the amount of CCRs put to beneficial uses since 2000. This contrasts with the situation in Europe where “nearly all CCRs are beneficially used, and when used are considered to be products rather than waste.” Id . at 35164/3. Under U.S. law a similar result would apply; indeed, it appears that if 100% of all CCRs were actually beneficially used, there would be neither a basis nor a need for regulation. Id. at 35161 n.70 and accompany ing text. Similarly, if nearly all CCRs are beneficially used, then the designation of hazardous or special waste to the insignificant remaining portion of CCRs would likely have little stigmatic or practical adverse effects. But where, as in the current U.S. situation, less than half all CCRs are beneficially used, most CCRs will still be subject to disposal rules. Further, whether CCRs in general or for a specific electric generation unit can be beneficially used or will require disposal can turn on the vagaries of the market. In contrast to EPA’s view that CCRs from a given plant can be compartmentalized between beneficial uses and disposal ( see 75 FR at 35161/2 (suggesting how an appropriate balance can be met)), the reality will likely be much messier, with some CCRs being beneficially used and others sent to disposal. Further, even if segregation could be achieved, it can be done only at a very high cost. As a result, the industry in general and individual operators specifically
must be trained to deal with hazardous waste, and then plan and operate their plants at least for the immediate future on the basis that a substantial portion of their CCRs will be sent to disposal.[Footnote 3:If it is assumed that that the same 60% growth rate in beneficial use s experienced between 2000 and 2008 (from 23% to 37%) could be sustained over the next 16 years, at that point (2024) beneficial uses would account for 95% of all CCRs. ] In addition, the Notice indicates when CCR beneficially used products “reach the end of their useful life and are to be disposed of . . . [they] would be subject to RCRA subtitle C if the waste exhibits a characteristic of hazardous waste.” 75 FR at 35173/3. This adds another dimension of uncertainty and concern that will likely reduce int erest in beneficial uses. All this means, in contrast to EPA’s sanguine view, is that the choice of subtitle C or subtitle D designation would have very practical and real impacts, not the least of which would be the added financial burden
on state and loc al budgets.
The current increase in beneficial uses of CCRs has occurred without CCRs being designated and regulated as hazardous waste, and has been advanced by cooperative efforts between the government, academia, and the industry. 75 FR at 35161/2. As the Notice summarizes (75 FR at 35212/3), very substantial cost savings and economic benefits already realized under the current regime can only serve to spur the growth of beneficial uses. Rather than building on this “carrot” approach, EPA surmises that wielding the “stick” of subtitle C regulations will force utilities to look for more beneficial uses for their CCRs. But subtitle C regulations would create new problems

-- state laws that preclude beneficial uses of hazardous waste and negative public

per ception of products made from hazardous (special) waste

– that would likely result in a severe
diminution of CCR beneficial uses.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under su btitle 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

- 10495

- 1 

### Organization 1 

### : Earthjustice, et. al.496



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



### Comment Excerpt Text: E. [corrected from A. in second half of split submission] Safe disposal requirements are technologically feasible and p ractical

Fortunately, there are alternatives to the current methods of disposal responsible for the damage detailed above. 42 U.S.C. §§ 6982(n)(5) directs EPA to study alternatives to current disposal methods, and these factors also compel subtitle C regu lation of CCRs.

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 u se aspects of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10495

- 2 

### 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: 3.4 

### Comment Excerpt Text: 1. Safe disposal methods are available and technically feasible

EPA admits that improved disposal management practices, such as the installation of liners and groundwater monitoring, are indeed practical for CCR disposal. [Footnote 2: 2010 Proposed Rule, at 75 Fed. Reg. at 35,156.] In fact, the disposal practices that EPA requires in its subtitle C option are similar to the requirements under subtitle D for municipal solid waste landfills, which
have been in effec t since 1991. [Footnote 3: See Criteria for Municipal Solid Waste Landfills, 56 Fed. Reg. 51,016 (Oct. 9, 1991) (codified at 40 C.F.R. Pt. 258).] The design standards for municipal solid waste landfills, like EPA’s proposed subtitle C rule, require the use of a composite liner, leachate collection system, groundwater monitoring, run

- on/runoff control system, fugitive dust control and final impermeable cap. [Footnote 4: 40 C.F.R. § 258.40.] [Footnote 5: Id.] [Footnote 6: 40 C.F.R. § 258.51.] [Footnote 7: 40 C.F.R. § 258.26.] [Footnote 8: 40 C.F.R. § 258.24.] [Footnote 9: 40 C.F.R. § 258.60.] Operating standards for municipal solid waste landfills are also similar to the proposed subtitle C requirements and include location restrictions, corrective action, and closure requirements. [Footnote 10: 40 C.F.R. §§ 258.10

– 16.] [Footnote 11: 40 C.F.R. § 258.58.] [Footnote 12: 40 C.F.R. § 258.60.] No new technologies need to be developed to satisfy the requirement for installation of these basic landfill controls.
Exist ing technologies have been in use for decades, and can easily be put to use in the CCR497

context. For the last ten years they have been applied to the much larger waste stream of municipal solid waste, which, at 253 million tons per year, dwarfs the CCR wast e stream. [Footnote 13: See EPA, Summary of the Municipal Solid Waste Program, http://www.epa.gov/reg3wcmd/solidwastesummary.htm. However, the tonnage managed in landfills may be roughly the same, given the high recycling and combustion rates for MSW.]
Fur thermore, EPA estimates that there were roughly 2,300 municipal solid waste landfills in operation in 2000, a much larger universe of units on which to impose safeguards and permitting requirements. [Footnote 14: See Final Rule, Nonwastewaters From Product ions of Dyes, Pigments, and Food, Drug, and Cosmetic Colorants, 70 Fed. Reg. 9144, 9146, available at http://www.epa.gov/wastes/laws

- regs/state/revision/frs/fr206.pdf.] In fact, in a few states that already require basic safeguards for CCR disposal, techno logies such as liners, leachate collection systems, and groundwater monitoring have been applied successfully and without undue economic burden to the regulated industry or the state regulatory program. [Footnote 15: See, e.g., the Wisconsin Department of Natural Resources coal combustion waste regulatory program.]

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.

Section 2.2.6

- Cost of alternative disposal methods Total Number of Submissions: 6 Total Number of Comments: 6



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 04001

- 9 

### 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: 2.2.5 2.2.7 9.5.2 

### Comment Excerpt Text: 3. The Rule fails to thoroughly evaluate the economic impact upon the coal industry

As set forth in the Rule, three of the eight factors that should be analyzed in deciding whether to maintain the Bevill exemption for CCRs are: (i) alternatives to current disposal methods, (ii) the cost of such alternatives, and (iii) the impact of the alternatives on the us e of coal and other natural resources. Without limiting our objections to the analysis set forth in the Rule for each of the eight factors, we specifically note our objections to the analysis of the said three factors. The Rule states that "[.1]here arc no meaningful disposal alternatives other than land disposal" and erroneonsly asserts that "[t]he alternative disposal methods mentioned above [i.e., land disposal] are not expected to impact the usc of coal or other natural resources," The estimated economi c impacts set forth in the Rule are based primarily upon projected costs to the electric utility industry, The Rule fails to recognize the costs to the mining industry associated with changes to498

the criteria for beneficial use and the potential changes aff ecting unencapsulated uses, If alternative methods are required (such as the usc of liners and caps), the cost to produce coal will increase, causing the usc of coal to decrease if other forms of energy become less costly in comparison, Additionally, if al ternative methods are required, recent increases in the cost for calcareous materials (resulting from federal legislation directing funding on road construction and repair projects) will further increase the cost to produce coal, thereby decreasing its

marketability and use, Implementation of the Rule should be suspended and a thorough analysis of the impact of the Rule upon the mining industry should be performed, including an analysis of the costs associated with increased regulation, increased permitting and compliance requirements, and increased cost of labor and materials, including costs associated with composite liners,

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of today’s preamble for a discu ssion on our decision to regulate CCR under
subtitle D of RCRA. The commenter is also referred to the benefical use discussion in the preamble as well as the cost benefit analysis.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 14 

### 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: 2.2.1 2.2.2 2.2.3 2.2.4 2.2.5 2.2.7 2.2.8 

### Comment Excerpt Text:

In this section of our comments, each factor of section 8002(n) is evaluated in light of the considerable evidence and recent data that have come to light since EPA’s 2000 Final Determination. [ ICF COMMENT ANALYSIS NOTE: for SECTION III. A, which starts page 12 of original comment #6315.1 through SECTION III. H, which ends on page 153 of original
comment #10495.1

-- each evaluates one of the eight Befill factors; those comments are usually coded to relevant issues within the issue outline instead of directly to 2.2 .1 through 2.2.8 ] In section 8002(n), Congress instructed EPA to examine a wide range of factors: volume of coal ash; current disposal and use; potential danger from mismanagement, documented cases of proven threats to health and the environment, alternati ves to current disposal, the cost of such alternatives, the impact of regulation on the use of coal and other resources, and current and potential reuse of coal ash. Reexamination of all eight study factors reveals that regulation of
CCRs under RCRA subtit le C of RCRA is clearly warranted.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06352

- 6 

### Organization 1 

### : Dayton Power & Light Company (DP&L)499



### Commenter 1 : JoAnne Rau Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.2.5 

### Comment Excerpt Text: Regulatory Alternatives and the Cost Impacts of Those Alternatives Do Not Support Listing. (Criteria 5 and 6)

As part of its Regulatory Impact Analysis (RIA) for the proposed rule, USEPA has estimated the costs and benefits for each of the regulatory alternatives presented in the proposal, including the RCRA subtitle C option. [FN 8: 75 Fed. Re g. at 35215.] The comparison assesses the expected costs and anticipated benefits under three different impact scenarios for the beneficial use of CCRs (1

- increased beneficial use of CCRs resulting from regulation under RCRA subtitle C; 2

- decreased benef

icial use of CCRs based on stigma and possible use restrictions under state regulation and private sector standards resulting from regulation under RCRA subtitle C; and 3

- no changes to the current beneficial use of CCRs).

USEPA's own cost

- benefit assessm ent is entirely driven by the assumption that recycling rates will increase under subtitle C. In fact, according to USEPA's Table 10 on page 35216 of the June 21, 2010 Federal Register notice, the assumed future increase in CCR beneficial use accounts for between 96.8% and 82.6% of the total regulatory benefits assigned to the subtitle C option. Absent this assumed increase in beneficial reuse (either a decline in the beneficial use of CCRs or no change) the costs of subtitle C regulation vastly outweigh th e benefits, as shown on Table 11 and Table 12 respectively resulting in a negative net benefit and benefit/cost ratios either negative or less than one.

These results are further suspect when one considers the assumptions USEPA uses to develop the anticip ated value of avoided impoundment failure cleanup costs. Under the subtitle C option, the agency includes in the regulatory benefits a present value for CCR Impoundment Failure Cleanup Costs Avoided of between $1.762 billion and $16.732 billion (assuming i ncreased beneficial use). [FN 9: 75 Fed. Reg. at 35216.] USEPA explains that these values were based on information developed from the 2009 mail survey of 584 CCR impoundments operated by the electric utility industry and the number of releases reported. [ FN 10: 75 Fed. Reg. at 35214.] As described in the RIA, the agency only used those releases which it consider to be significant and given what it considers to be limited data, attempts to quantify the avoided costs of future
failures. One of the failure sc enarios considered by the agency in this analysis is the assumed failure rate between 10% and 20% within the next 20 years for 96 high

- risk CCR impoundments identified to be at least 40 feet tall and at least 25 years old. USEPA provides scant information to support this assumed failure rate and based on the rarity of significant CCR impoundment failures and the high level of oversight given to impoundments by electric utilities, it is likely to drastically overstate the probability of future events and the refore the avoided cleanup cost
benefits.500

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 71 

### 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: Indeed, EPA readily acknowledges that one of the express purposes of the Subtitle C option is to increase the costs of CCR, relying on the misguided impression that this increased cost will somehow increase CCR beneficial use. As discussed below, this is simply wrong.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under su btitle 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

- 08246

- 9 

### Organization 1 

### : Stinson Morrison Hecker LLP on behalf of Kansas City B oard of Public
Utilities 

### Commenter 1 : Parthenia B. Evans and Dennis Lane Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.4.1 10.4.3 2.2.5 2.2.8 2.2.7 

### Comment Excerpt Text: Factors Five through Eight: the Regulatory Choice made Will Affect Beneficial Uses with the Result that the Costs Associated with any of the Proposed Rule Changes Far Outweigh the Projected Benefits The remaining four Bevill factors

– alternatives to current disposal methods, cost of such alternatives, impact of alternatives on use of coal and other natural resources, and current and potential use of CCRs

– are interrelated. 75 FR at 35156. The Notice takes the sanguine view
that a ru le change would have no effect on the use of coal and other natural resources, and would likely lead to increased beneficial uses of CCRs even under the subtitle C option. Id . On the latter point, the Notice downplays the potential stigma associated with C CRs’ being designated as hazardous ( i.e. , "special”) waste, stating the beneficial use of CCRs “would not be affected by today’s proposed rule in any case, regardless of the option taken.” 75 FR at 35161/3. But the evidence suggests that this expectation i s unrealistic from both a legal and a factual view. From a legal standpoint, it seems clear that a designation of CCRs as hazardous or special waste would likely halt beneficial use production in many, if not most, States given that the law in
Kansas and other States “prohibits the land disposal of any RCRA hazardous waste.” KDHE501

Comments at 2; see 75 FR at 35156/2 (same for other States). This follows from the factual problem with EPA’s sanguine view, viz. , currently beneficial uses account for only 37% o f all CCRs (up to 45% if minefills are included), id. at 35156/1

- 2, despite a dramatic increase in the amount of CCRs put to beneficial uses since 2000. This contrasts with the situation in Europe where “nearly all CCRs are beneficially used, and when used are considered to be products rather than waste.” Id . at 35164/3. Under U.S. law a similar result would apply; indeed, it appears that if 100% of all CCRs were actually beneficially used, there would be neither a basis nor a need for regulation. Id. at 35 161 n.70 and accompanying text. Similarly, if nearly all CCRs are beneficially used, then the designation of hazardous or special waste to the insignificant remaining portion of CCRs would likely have little stigmatic or practical adverse effects.
But whe re, as in the current U.S. situation, less than half all CCRs are beneficially used, most CCRs will still be subject to disposal rules. Further, whether CCRs in general or for a specific electric generation unit can be beneficially used or will require dis posal can turn on the vagaries of the market. In contrast to EPA’s view that CCRs from a given plant can be compartmentalized between beneficial uses and disposal ( see 75 FR at 35161/2 (suggesting how an appropriate balance can be met)), the reality will l ikely be much messier, with some CCRs being beneficially used and others sent to disposal. Further, even if segregation could be achieved, it can be done only at a very high cost. As a result, the industry in general and individual operators specifically

m ust be trained to deal with hazardous waste, and then plan and operate their plants at least for the immediate future on the basis that a substantial portion of their CCRs will be sent to disposal.[Footnote 3:If it is assumed that that the same 60% growth rate in beneficial uses experienced between 2000 and 2008 (from 23% to 37%) could be sustained over the next 16 years, at that point (2024) beneficial uses would account for 95% of all CCRs. ] In addition, the Notice indicates when CCR beneficially used pr oducts “reach the end of their useful life and are to be disposed of . . . [they] would be subject to RCRA subtitle C if the waste exhibits a characteristic of hazardous waste.” 75 FR at 35173/3. This adds another dimension of uncertainty and concern that will likely reduce interest in beneficial uses. All this means, in contrast to EPA’s sanguine view, is that the choice of subtitle C or subtitle D designation would have very practical and real impacts, not the least of which would be the added financial b urden on state and local budgets.
The current increase in beneficial uses of CCRs has occurred without CCRs being designated and regulated as hazardous waste, and has been advanced by cooperative efforts between the government, academia, and the industry. 75 FR at 35161/2. As the Notice summarizes (75 FR at 35212/3), very substantial cost savings and economic benefits already realized under the current regime can only serve to spur the growth of beneficial uses. Rather than building on this “carrot”

approa ch, EPA surmises that wielding the “stick” of subtitle C regulations will force utilities to look for more beneficial uses for their CCRs. But subtitle C regulations would create new problems

-- state laws that preclude beneficial uses of hazardous waste a nd negative public perception of products made from hazardous (special) waste

– that would likely result in a severe
diminution of CCR beneficial uses.

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

- 10495

- 4502



### 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: F. Analysis of the Costs of Responsible Disposal Confirms the Regulation under Subtitle C
is Nece ssary and Appropriate

The costs of responsible CCR disposal are in no way prohibitive. The RIA estimates that the engineering controls, land disposal restrictions, and ancillary requirements associated with federally enforceable Subtitle C standards would cost $1,474 million per year on an annualized basis. The electric power industry can easily absorb these modest expenditures, which will be distributed among nearly 500 facilities, and account for about 1% or less of the industry’s annual operating cost. And even if all of these expenses are passed along to consumers, the effect on electricity rates would be negligible.

Some power companies already face significant liability for the cleanup of CCR sites that are already badly contaminated, or will be in the near future. As EPA has recognized, those liabilities are unavoidable and ought not to be charged to the rule, which is primarily designed to keep CCR damage from spreading even further. For that reason, it is far more important to accurately account f

or the benefits that would result from the relatively small investment in prevention and cleanup that Schedule C standards would require. Each of these points is explained further below.

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 Unit XII for a discussion of the cost benefit analysis as well as the response to comment document addressing this issue.

Section 2.2.7

- Impact of alternative disposal methods on use of coal and other natural

resources Total Number of Submissions: 6 Total Number of Comments: 6



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 04001

- 9 

### Organization 1 

### : Coresco, LLC 

### Commenter 1 : Carrie D. Lilly Commenter Type: Be neficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.2.5 2.2.6 9.5.2503



### Comment Excerpt Text: 3. The Rule fails to thoroughly evaluate the economic impact upon the coal industry

As set forth in the Rule, three of the eight factors that should be analyzed in deciding whether to maintain the Bevill exemption for CCRs are: (i) alternatives to current disposal methods, (ii) the cost of such alternatives, and (iii) the impact of the alternati ves on the use of coal and other natural resources. Without limiting our objections to the analysis set forth in the Rule for each of the eight factors, we specifically note our objections to the analysis of the said three factors. The Rule states that "[. 1]here arc no meaningful disposal alternatives other than land disposal" and erroneonsly asserts that "[t]he alternative disposal methods mentioned above [i.e., land disposal] are not expected to impact the usc of coal or other natural resources," The esti mated economic impacts set forth in the Rule are based primarily upon projected costs to the electric utility industry, The Rule fails to recognize the costs to the mining industry associated with changes to the criteria for beneficial use and the potentia l changes affecting unencapsulated uses, If alternative methods are required (such as the usc of liners and caps), the cost to produce coal will increase, causing the usc of coal to decrease if other forms of energy become less costly in comparison, Additi onally, if alternative methods are required, recent increases in the cost for calcareous materials (resulting from federal legislation directing funding on road construction and repair projects) will further increase the cost to produce coal, thereby decre asing its marketability and use, Implementation of the Rule should be suspended and a thorough analysis of the impact of the Rule upon the mining industry should be performed, including an analysis of the costs associated with increased regulation, increas ed permitting and compliance requirements, and increased cost of labor and materials, including costs associated with composite liners,

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 14 

### 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: 2.2.1 2.2.2 2.2.3 2.2.4 2.2.5 2.2.6 2.2.8 

### Comment Excerpt Text: In this section of our comments, each factor of section 8002(n) is evaluated in light of the considerable evidence and recent data that have come to light since EPA’s 2000 Final Determination. [ ICF COMMENT ANALYSIS NOTE: for SECTION III. A, which sta rts page 12 of original comment #6315.1 through SECTION III. H, which ends on page 153 of original
comment #10495.1

-- each evaluates one of the eight Befill factors; those comments are usually coded to relevant issues within the issue outline instead of d irectly to 2.2.1 through 2.2.8 ] In section 8002(n), Congress instructed EPA to examine a wide range of factors: volume of coal ash; current disposal and use; potential danger from mismanagement, documented cases of proven threats to health and the environm ent, alternatives to current disposal, the cost of such504

alternatives, the impact of regulation on the use of coal and other resources, and current and potential reuse of coal ash. Reexamination of all eight study factors reveals that regulation of
CCRs und er RCRA subtitle C of RCRA is clearly warranted.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06352

- 7 

### Organization 1 

### : Dayton Power & Light Company (DP&L) 

### Commenter 1 : JoAnne Rau Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.2.8 

### Comment Excerpt Text: Unjustified Assumptions on the Impact on Use and Current or Potential Use Do Not Support Listing. (Criteria 7 and 8)

It is USEPA's contention that based on past experience with hazardous waste regulations, beneficial use rates will increase for CCRs as a result of subtitle C regulation. DP&L disagrees with this assumption. In its discussion o f the listing of CCR as a special waste to address the perceived stigma issue, USEPA attempts to make its case that this will not negatively impact beneficial use, despite numerous concerns expressed by state regulatory agencies that a subtitle C option ma y even prohibit beneficial use in their state. [FN 11: 75 Fed. Reg. at 35185.] Specifically, USEPA states"...EPA is proposing, as one alternative, to codify the listing in a separate, unique section of the regulations... EPA would create a new Subpart F an d label the section as 'List of Special Wastes Subject to Subtitle C', to distinguish it from the industrial hazardous wastes". [FN 12: 75 Fed. Reg. at 35187.] This is analogous to the proverbial wolf in sheep's clothing. Simply calling CCRs a "special was te" while subjecting them to the entire array hazardous waste regulations when designated for disposal does not eliminate a stigma associated with their beneficial use. Testimony to the contrary has already been provided to the agency through multiple aven ues including the fact that just the specter of subtitle C regulation of CCRs has already had a chilling effect on their beneficial use.

Furthermore, this assumption by USEPA ignores the entire concept of market economics. The only way a material that nor mally is a waste would be reused as a product is when the cost of its disposal is more than the cost of its reuse and it costs less than an equivalent raw material that it is replacing (i.e. there is an economic benefit for all parties involved). USEPA is relying on past experience with the industrial hazardous waste sector where wastes that are either listed or characteristic can be recycled by being: 1) used or reused as either ingredients or as product substitutes, 2) reclaimed, or 3) burned for energy r ecovery. Thus the primary reason for an increase in the recycling of a hazardous waste in the past has been that there is a market for the ingredient or product derived from the waste, or the waste is valuable as a fuel. CCRs cannot be
reclaimed or burned as a fuel so an increase in beneficial reuse can only occur if there is an505

increased market for CCRs as an ingredient or product substitute. Simply reclassifying the material as hazardous when designated for disposal does not create a market for its reuse. In this case, under USEPA's proposed subtitle C approach, there would be an enormous amount of CCRs suddenly looking for a market outlet, not finding one and being ultimately disposed of in
hazardous waste landfills.

Response: The Agency acknowledges an d appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06988

- 11 

### 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: 2.2.8 

### Comment Excerpt Text: EPA has willfully failed to consider both the impact of those alternatives on the “use of coal and other natural resources" and "the current and potential utilization of these materials” as required under the Bevill amendment, and as such these sections of the proposed rule are fatally flawed.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08246

- 9 

### Organization 1 

### : Stinson Morrison Hecker LLP on behalf of Kansas City Board of Public
Utilities 

### Commenter 1 : Parthenia B. Evans and Dennis Lane Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Contex t Assigned/Due:
Other Sections: 10.4.1 10.4.3 2.2.6 2.2.5 2.2.8 

### Comment Excerpt Text: Factors Five through Eight: the Regulatory Choice made Will Affect Beneficial Uses with the Result that the Costs Associated with any of the Proposed Rule Changes Far O utweigh the Projected Benefits The remaining four Bevill factors

– alternatives to current disposal methods, cost of such alternatives, impact of alternatives on use of coal and other natural resources, and current and potential use of CCRs

– are interrel ated. 75 FR at 35156. The Notice takes the sanguine view that a rule change would have no effect on the use of coal and other natural resources, and would likely lead to increased beneficial uses of CCRs even under the subtitle C option. Id . On the
latter point, the Notice downplays the potential stigma associated with CCRs’ being designated506

as hazardous ( i.e. , "special”) waste, stating the beneficial use of CCRs “would not be affected by today’s proposed rule in any case, regardless of the option taken.” 7 5 FR at 35161/3. But the evidence suggests that this expectation is unrealistic from both a legal and a factual view. From a legal standpoint, it seems clear that a designation of CCRs as hazardous or special waste would likely halt beneficial use product ion in many, if not most, States given that the law in Kansas and other States “prohibits the land disposal of any RCRA hazardous waste.” KDHE Comments at 2; see 75 FR at 35156/2 (same for other States). This follows from the factual problem with EPA’s san guine view, viz. , currently beneficial uses account for only 37% of all CCRs (up to 45% if minefills are included), id. at 35156/1

- 2, despite a dramatic increase in the amount of CCRs put to beneficial uses since 2000. This contrasts with the situation in Europe where “nearly all CCRs are beneficially used, and when used are considered to be products
rather than waste.” Id . at 35164/3. Under U.S. law a similar result would apply; indeed, it appears that if 100% of all CCRs were actually beneficially used, t here would be neither a basis nor a need for regulation. Id. at 35161 n.70 and accompanying text. Similarly, if nearly all CCRs are beneficially used, then the designation of hazardous or special waste to the insignificant remaining portion of CCRs would likely have little stigmatic or practical adverse effects.
B ut where, as in the current U.S. situation, less than half all CCRs are beneficially used, most CCRs will still be subject to disposal rules. Further, whether CCRs in general or for a specific electric generation unit can be beneficially used or will requi re disposal can turn on the vagaries of the market. In contrast to EPA’s view that CCRs from a given plant can be compartmentalized between beneficial uses and disposal ( see 75 FR at 35161/2 (suggesting how an appropriate balance can be met)), the reality will likely be much messier, with some CCRs being beneficially used and others sent to disposal. Further, even if segregation could be achieved, it can be done only at a very high cost. As a result, the industry in general and individual operators specific ally must be trained to deal with hazardous waste, and then plan and operate their plants at least for the immediate future on the basis that a substantial portion of their CCRs will be sent to disposal.[Footnote 3:If it is assumed that that the same 60% g rowth rate in beneficial uses experienced between 2000 and 2008 (from 23% to 37%) could be sustained over the next 16 years, at that point (2024) beneficial uses would account for 95% of all CCRs. ] In addition, the Notice indicates when CCR beneficially u sed products “reach the end of their useful life and are to be disposed of . . . [they] would be subject to RCRA subtitle C if the waste exhibits a characteristic of hazardous waste.” 75 FR at 35173/3. This adds another dimension of uncertainty and concern that will likely reduce interest in beneficial uses. All this means, in contrast to EPA’s sanguine view, is that the choice of subtitle C or subtitle D designation would have very practical and real impacts, not the least of which would be the added finan cial burden on state and local budgets.
The current increase in beneficial uses of CCRs has occurred without CCRs being designated and regulated as hazardous waste, and has been advanced by cooperative efforts between the government, academia, and the ind ustry. 75 FR at 35161/2. As the Notice summarizes (75 FR at 35212/3), very substantial cost savings and economic benefits already realized under the current regime can only serve to spur the growth of beneficial uses. Rather than building on this “carrot” approach, EPA surmises that wielding the “stick” of subtitle C regulations will force utilities to look for more beneficial uses for their CCRs. But subtitle C regulations would create new problems

-- state laws that preclude beneficial uses of hazardous w aste and negative public perception of products made from hazardous (special) waste

– that would likely result in a severe
diminution of CCR beneficial uses.507

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

- 10495

- 11 

### 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:

G. Analysis of the impact of disposal methods mandated under the proposed subtitle C rule indicates that there will be no adverse impact on the use of coal and other natural

resources.

EPA concludes in the preamble that the disposal methods required under b oth options, subtitle C and D, “are not expected to impact the use of coal or other natural resources.” [Footnote 46: 2010 Proposed Rule, 75 Fed. Reg. at 35156.]. EPA does point out, however, that an increase in beneficial use, which is predicted by EPA un der subtitle C, will conserve the natural resources by avoiding the use of virgin materials, such as gypsum, aggregate, and ingredients in Portland cement. [Footnote 47: Id.].

Response: The commenter is referred to Unit IV of today’s preamble for a discu ssion 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.

Section 2.2.8

- Current and potential use of CCRs Total Number of Sub missions: 10 Total Number of Comments: 18



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 14 

### 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: 2.2.1 2.2.2 2.2.3 2.2.4 2.2.5 2.2.6 2.2.7 

### Comment Excerpt Text: In this section of our comments, each factor of section 8002(n) is evaluated in light of the
considerable evidence and recent data that have co me to light since EPA’s 2000 Final Determination. [ ICF COMMENT ANALYSIS NOTE: for SECTION III. A, which starts page 12 of508

original comment #6315.1 through SECTION III. H, which ends on page 153 of original
comment #10495.1

-- each evaluates one of the eigh t Befill factors; those comments are usually coded to relevant issues within the issue outline instead of directly to 2.2.1 through 2.2.8 ] In section 8002(n), Congress instructed EPA to examine a wide range of factors: volume of coal ash; current disposal and use; potential danger from mismanagement, documented cases of proven threats to health and the environment, alternatives to current disposal, the cost of such alternatives, the impact of regulation on the use of coal and other resources, and current an d potential reuse of coal ash. Reexamination of all eight study factors reveals that regulation of CCRs under RCRA subtitle C of RCRA is clearly warranted.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our

decisio n 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

- 06352

- 7 

### Organization 1 

### : Dayton Power & Light Company (DP&L) 

### Commenter 1 : JoAnne Rau Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.2.7 

### Comment Excerpt Text: Unjustified Assumptions on the Impact on Use an d Current or Potential Use Do Not Support Listing. (Criteria 7 and 8)

It is USEPA's contention that based on past experience with hazardous waste regulations, beneficial use rates will increase for CCRs as a result of subtitle C regulation. DP&L disagrees with this assumption. In its discussion of the listing of CCR as a special waste to address the perceived stigma issue, USEPA attempts to make its case that this will not negatively impact beneficial use, despite numerous concerns expressed by state regul atory agencies that a subtitle C option may even prohibit beneficial use in their state. [FN 11: 75 Fed. Reg. at 35185.] Specifically, USEPA states"...EPA is proposing, as one alternative, to codify the listing in a separate, unique section of the regulati ons... EPA would create a new Subpart F and label the section as 'List of Special Wastes Subject to Subtitle C', to distinguish it from the industrial hazardous wastes". [FN 12: 75 Fed. Reg. at 35187.] This is analogous to the proverbial wolf in sheep's cl othing. Simply calling CCRs a "special waste" while subjecting them to the entire array hazardous waste regulations when designated for disposal does not eliminate a stigma associated with their beneficial use. Testimony to the contrary has already been pr ovided to the agency through multiple avenues including the fact that just the specter of subtitle C regulation of CCRs has already had a chilling effect on their beneficial use.

Furthermore, this assumption by USEPA ignores the entire concept of market e conomics. The only way a material that normally is a waste would be reused as a product is when the cost of its disposal is more than the cost of its reuse and it costs less than an equivalent raw material that it509

is replacing (i.e. there is an economic be nefit for all parties involved). USEPA is relying on past experience with the industrial hazardous waste sector where wastes that are either listed or characteristic can be recycled by being: 1) used or reused as either ingredients or as product
substitute s, 2) reclaimed, or 3) burned for energy recovery. Thus the primary reason for an increase in the recycling of a hazardous waste in the past has been that there is a market for the ingredient or product derived from the waste, or the waste is valuable as a fuel. CCRs cannot be reclaimed or burned as a fuel so an increase in beneficial reuse can only occur if there is an increased market for CCRs as an ingredient or product substitute. Simply reclassifying the material as hazardous when designated for dispos al does not create a market for its reuse. In this case, under USEPA's proposed subtitle C approach, there would be an enormous amount of CCRs suddenly looking for a market outlet, not finding one and being ultimately disposed of in
hazardous waste landfil ls.

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

- 06842

- 3 

### Organization 1 

### : Michigan Manufacturers Association 

### Commenter 1 : Randall Gross Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other S ections: 10.4.2 

### Comment Excerpt Text: Conversely, the continued regulation of fly ash as non

- hazardous waste would ensure the safe management of fly ash while allowing for its beneficial use, including as an essential ingredient in scores of products. This would be consistent with the RCRA, wh ich requires that the EPA consider the “current and potential utilization” of CCRs in evaluating its regulatory options for CCRs (RCRA § 8002(n)(8)). EPA and the States have consistently recognized that regulating CCRs under RCRA Subtitle C would adversely impact their beneficial use. The regulation of CCRs under RCRA Subtitle C is at odds with nearly three decades of EPA study and formal determinations marked by strong scientific integrity concluding that CCRs do not warrant Subtitle C regulation.

Respon se: 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

- 06988

- 11 

### Organization 1 

### : Missouri Joint Municipal Electric Utility Commission 

### Commenter 1 : Floyd Gilzow510

Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.2.7 

### Comment Excerpt Text: EPA has willfully failed to consider both the impact of those alternatives on the “use of coal and other natural resources" and "the current and potential utilization of these materials” as requir ed under the Bevill amendment, and as such these sections of the proposed rule are fatally flawed.

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 comment er 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

- 08246

- 9 

### Organization 1 

### : Stinson Morrison Hecker LLP on behalf of Kansas City Board of Public
Utilities 

### Commenter 1 : Parthenia B. Evans and Dennis Lane Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.4.1 10.4.3 2.2.6 2.2.5 2.2.7 

### Comment Excerpt Text:

Facto rs Five through Eight: the Regulatory Choice made Will Affect Beneficial Uses with the Result that the Costs Associated with any of the Proposed Rule Changes Far Outweigh the Projected Benefits The remaining four Bevill factors

– alternatives to current d isposal methods, cost of such alternatives, impact of alternatives on use of coal and other natural resources, and current and potential use of CCRs

– are interrelated. 75 FR at 35156. The Notice takes the sanguine view that a rule change would have no eff ect on the use of coal and other natural resources, and would likely lead to increased beneficial uses of CCRs even under the subtitle C option. Id . On the latter point, the Notice downplays the potential stigma associated with CCRs’ being designated
as ha zardous ( i.e. , "special”) waste, stating the beneficial use of CCRs “would not be affected by today’s proposed rule in any case, regardless of the option taken.” 75 FR at 35161/3. But the evidence suggests that this expectation is unrealistic from both a l egal and a factual view. From a legal standpoint, it seems clear that a designation of CCRs as hazardous or special waste would likely halt beneficial use production in many, if not most, States given that the law in Kansas and other States “prohibits the land disposal of any RCRA hazardous waste.” KDHE Comments at 2; see 75 FR at 35156/2 (same for other States). This follows from the factual problem with EPA’s sanguine view, viz. , currently beneficial uses account for only 37% of all CCRs (up to 45% if mi nefills are included), id. at 35156/1

- 2, despite a dramatic increase in the amount of CCRs put to beneficial uses since 2000. This contrasts with the situation in Europe where “nearly all CCRs are beneficially used, and when used are considered to be produ cts rather than waste.” Id . at 35164/3. Under U.S. law a similar result would apply; indeed, it appears that if 100% of all CCRs were actually beneficially used, there would be neither a basis511

nor a need for regulation. Id. at 35161 n.70 and accompanying text. Similarly, if nearly all CCRs are beneficially used, then the designation of hazardous or special waste to the insignificant remaining portion of CCRs would likely have little stigmatic or practical adverse effects.
B ut where, as in the current U.S. situation, less than half all CCRs are beneficially used, most CCRs will still be subject to disposal rules. Further, whether CCRs in general or for a specific electric generation unit can be beneficially used or will requi re disposal can turn on the vagaries of the market. In contrast to EPA’s view that CCRs from a given plant can be compartmentalized between beneficial uses and disposal ( see 75 FR at 35161/2 (suggesting how an appropriate balance can be met)), the reality will likely be much messier, with some CCRs being beneficially used and others sent to disposal. Further, even if segregation could be achieved, it can be done only at a very high cost. As a result, the industry in general and individual operators specific ally must be trained to deal with hazardous waste, and then plan and operate their plants at least for the immediate future on the basis that a substantial portion of their CCRs will be sent to disposal.[Footnote 3:If it is assumed that that the same 60% g rowth rate in beneficial uses experienced between 2000 and 2008 (from 23% to 37%) could be sustained over the next 16 years, at that point (2024) beneficial uses would account for 95% of all CCRs. ] In addition, the Notice indicates when CCR beneficially u sed products “reach the end of their useful life and are to be disposed of . . . [they] would be subject to RCRA subtitle C if the waste exhibits a characteristic of hazardous waste.” 75 FR at 35173/3. This adds another dimension of uncertainty and concern that will likely reduce interest in beneficial uses. All this means, in contrast to EPA’s sanguine view, is that the choice of subtitle C or subtitle D designation would have very practical and real impacts, not the least of which would be the added finan cial burden on state and local budgets.
The current increase in beneficial uses of CCRs has occurred without CCRs being designated and regulated as hazardous waste, and has been advanced by cooperative efforts between the government, academia, and the ind ustry. 75 FR at 35161/2. As the Notice summarizes (75 FR at 35212/3), very substantial cost savings and economic benefits already realized under the current regime can only serve to spur the growth of beneficial uses. Rather than building on this “carrot” approach, EPA surmises that wielding the “stick” of subtitle C regulations will force utilities to look for more beneficial uses for their CCRs. But subtitle C regulations would create new problems

-- state laws that preclude beneficial uses of hazardous w aste and negative public perception of products made from hazardous (special) waste

– that would likely result in a severe
diminution of CCR beneficial uses.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our

decis ion 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

- 08856

- 8 

### Organization 1 

### : Michigan Chamber of Commer ce 

### Commenter 1 : Doug Roberts Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.4.2512



### Comment Excerpt Text: On the other hand, the regulation of fly ash as non

- hazardous waste would ensure the continued safe management of fly ash while allowing for its continued beneficial use, including as an essential ingredient in scores of products. Such a result would be co nsistent with RCRA. The statute requires that EPA consider the "current and potential utilization" of CCRs in evaluating its regulatory options for CCR see RCRA ? 8002(n)(8). EPA and the States have consistently recognized that regulating CCRs under RCRA S ubtitle C would adversely impact their beneficial

use.

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

- 10489

- 17 

### Organization 1 

### : Harsco Minerals International, a division of Harsco Corporation 

### Commenter 1 : Gene Iannazzo Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.2.2 

### Comment Excerpt Text: Harsco annually purchases about 1 million tons of boiler slag and incorporates the vast majority of each year's purchas es in products that beneficially reuse boiler slag. Last year, for example, we used about 1.1 million tons of boiler slag in our products. Nearly 50 percent of the boiler slag we purchase is used as an abrasive, and about the same amount is incorporated in to roofing shingles. Approximately two percent of our boiler slag is beneficially reused in other ways, e.g. by being used as a road traction material, wastewater filtration system component, glass making ingredient, or a mineral filler in asphalt producti on. Some portion of our annual boiler slag purchases may be stockpiled for use in subsequent years, and a small percentage will be discarded for failure to meet product specifications.

Response: The commenter is referred to Unit IV of today’s preamble fo r 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

- 10489

- 49 

### Organization 1 

### : Harsco Minerals International, a division of Harsco Corporation 

### Commenter 1 : Gene Iannazzo Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:513



### Comment Excerpt Text:

For de cades the nation's boiler slag has been employed in a variety of uses, including roofing shingle components, blasting abrasives, glass

- making materials, and road

- traction materials. These long

- standing recycling practices present no significant risks to hu man health or the
environment.

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

- 10495

- 12 

### 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:

H. The Current and Potential Utilization of Coal Ash Favors Regulation under Subtitle C

A subtitle C designation for coal ash will increase the flow of ash to uses that are genuinely beneficial and prevent sham recycling under the guise of beneficial use. R egulations that require responsible management of coal ash will increase disposal costs and create a powerful incentive for generators to divert as much of the waste stream as possible to beneficial uses. Opting for either of the weaker regulatory options (“D” or “D prime”) will dampen this economic incentive considerably. Industry insists that a “special waste” listing under subtitle C will stigmatize coal ash and discourage beneficial use. However, there is no evidence to support the speculative argument that a hazardous waste label, much less a “special waste” label, would prompt market players including consumers to act against their economic (and environmental) interests, particularly if EPA is willing to cooperate with industry to educate the public ab out the environmental benefits afforded by safe, encapsulated uses. Historically, even when EPA has subjected beneficial uses themselves to regulation

— which EPA is not proposing to do here

— beneficial use has only increased. There is no reason to believ e that beneficial use will diminish under a rule that expressly exempts it from RCRA regulation. To the contrary, effective regulation may be expected to decrease negative public perceptions that arise in response to the serious damage caused by unsafe coa l ash disposal and most notably the disastrous TVA Kingston spill.

In any case, EPA cannot reasonably or legally decline to establish the essential safeguards that are needed to address proven threats to human health and the environment in order to

accomm odate hypothetical concerns about stigma. As Congress made clear, RCRA is intended first and foremost to protect human health and the environment. To the extent it seeks to encourage recycling and reuse, it does so with the express intent of reducing the h ealth and environmental threats posed by waste disposal. In short, safety must trump stigma concerns.514

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 comme nter 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

- 10495

- 17 

### Organization 1 

### : Earthjustice, et. al. 

### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group
Class ification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.3.1 

### Comment Excerpt Text: 2. EPA Cannot Properly Base Its Listing Determination on Stigma Concerns

Even if the stigma concerns raised by industry were legitimate

— which they are not

— they would not provide a valid basis for declining to regulate coal ash under RCRA Subtitle C. While the Bevill factors arguably require EPA at least to consider stigma, the Bevill factors do do not govern EPA’s final de cision on its proposed rule. Regardless, EPA must make a decision that ensures protection of human health and the environment regardless of any potential stigma.

a. The Bevill factors do not govern EPA’s current proposal to list and promulgate regulations for coal ash.

While the Bevill factors [Footnote 96: 42 U.S.C. § 6982(n).] are applicable to a threshold determination whether or not to regulate CCRs, the factors no longer apply after EPA makes a decision that regulation is warranted. Thus, the actual listing of CCRs under subtitle C are governed by the hazardous waste listing criteris set forth at 40 C.F.R. § 261.11(a). Under the Bevill Amendment, EPA was directed to consider the eight study factors for two purposes: to make a Report to Congress, [Foo tnote 97: 42 U.S.C. § 6982(n).] and to determine whether regulation is warranted or not. [Footnote 98: 42 U.S.C. § 6921(c).]. Congress did not direct EPA to use the Bevill factors when listing the waste or promulgating the regulations themselves.

EPA alr eady issued several Reports to Congress. [Footnote 99: See, e.g., 1999 Report to Congress v. 1&2.]. Furthermore, EPA already made the regulatory determinations required by the statute. First, EPA made a regulatory determination in August of 1993 to exempt large volumes of coal combustion wastes generated at electric utilities and disposed of in monofills from hazardous waste regulation. [Footnote 100: EPA, Final Regulatory Determination on Four Large

- Volume Wastes From the Combustion of Coal by Electric Uti lity Power Plants, 58 Fed. Reg. 42,466 (Aug. 9, 1993) (to be codified at 40 C.F.R. pt. 261).]. Then, in March of 2000, EPA issued a revised regulatory determination that all large

- volume wastes land

- disposed or disposed of in surface or underground mines ( monofilled or co

- disposed with certain other wastes) would be regulated as hazardous waste under a contingent subtitle C listing. [Footnote 101: EPA, Regulatory Determination on Wastes from the Combustion of Fossil Fuels (Mar. 5, 2000) (not
cited in Federa l Register, to be codified at 40 C.F.R. pt. 261) (also determining that beneficial uses would be exempted from regulation)., available at515

http://www.publicintegrity.org/assets/pdf/CoalAsh

- Doc7.pdf.]. Then, in May of 2000, EPA made another revised regulator y determination to regulate large volume coal ash disposed of or placed in mines under subtitle D (with beneficial uses still exempted). [Footnote 102: EPA, Notice of Regulatory Determination on Wastes From the Combustion of Fossil Fuels, 65 Fed. Reg. 32,2 14 (May 22, 2000) (to be codified at 40 C.F.R. pt. 261).].

With these Reports to Congress and regulatory determinations executed, EPA fulfilled all of its statutory duties that involved consideration of the Bevill factors. While EPA may still revise its regulatory determination, when it makes its ultimate listing decision, EPA is statutorily required to consider only the relevant factors for listing wastes under subtitle C or Subtitle D. [Footnote 103: See 40 C.F.R. §§ 261.11(a), (c). Also, If EPA chooses to designate coal ash as a “special waste,” it may also consider modifcations of various statutory requirements pertaining to landfills and surface impoundments. See 42 U.S.C. § 6924(x).]. Consequently, the statutory
factors set forth in the Bevill Amendm ent do not apply to EPA’s choice between “C” and “D” regulation.

The D.C. Circuit’s decision in Hazardous Waste Treatment Council v. U.S.E.P.A. is directly on point. [Footnote 104: Hazardous Waste Treatment Council v. U.S. EPA, 861 F.2d 270, 275 (D.C.Cir. Oct, 07, 1988) [hereinafter HWTC].]. There, the court held that EPA impermissibly considered stigma in deciding how to list recycled use oil when it was only permitted to consider stigma for purposes of deciding whether section 6921 criteria were “applica b[le]” to that waste stream. [Footnote 105: Id. at 272 (“Section 8 did not direct the EPA to list used oil, but merely to “determin[e]” whether used oil meets the statutory and regulatory criteria, and then report that determination to Congress. The Agency complied with section 8, reporting to Congress its determination that certain types of used oils should be listed as a hazardous waste because of their toxic constituents.”).]. The controlling statute, the Used Oil Recycling Act, [Footnote 106:
Used Oil R ecycling Act of 1980 (UORA), 42 U.S.C. § 6935(a), at §§ 7 &8 (1982 & Supp. II 1984).] required EPA to “make a determination as to the applicability” of recycled used oil to the criteria and regulations promulgated under Section 6921 “relating to the charac teristics of hazardous wastes.” EPA was then required to report that determination to Congress. In making the applicability determination, Congress mandated that EPA “shall ensure that the recovery and reuse of used oil are not discouraged.” [Footnote 107: Id. ].

Subsequently, after EPA had still failed to make a listing determination, the Hazardous and Solid Waste Amendments of 1984 [Footnote 108: Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. § 6935 (Supp. II 1984).] were adopted as a “further prod” [Footnote 109: H.Rep.No. 198, pt. I, 98th Cong., 1st Sess. 64 (1983), U.S.Code Cong. & Admin.News 1984, 5576.] to the Agency, requiring that EPA “shall propose whether to list or identify [recycled used oil] as
hazardous waste under Section 6921 .” [F ootnote 110: Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. § 6935(b) (Supp. II 1984) (emphasis added).]. When EPA then made its decision not to list, the D.C. Circuit held that it was obliged to make its decision based not on the applicability cr iteria relevant to the report but instead “under 6921” itself. Once the reporting obligation was fulfilled, the applicability factors were “dead.” [Footnote 111: Id. at 275.]. As the Court explained: “[o]nce the Agency had . . . submit[ted] its report to C ongress on January 16, 1981, section 8 had served its purpose and was without further effect. A fortiori, its proviso, which applied solely to the Agency’s initial determination, died along with the rest of section 8.”516

[Footnote 112: Id.; see also Natural Resources Defense Council, Inc. v. U.S. E.P.A., 25 F.3d 1063, 1067 (D.C. Cir, 1994) (adopting this same interpretation of the case).].

Here, the Bevill factors are similarly inapplicable to EPA’s final listing decision. EPA was subject to a Congressional reporting requirement for coal ash, and the relevant statutory provision sets forth study factors but not listing factors. [Footnote 113: 42 U.S.C. § 6982(n).]. While EPA must determine whether to promulgate regulations based on consideration of the
Bevil l factors, once it has made the decision to regulate, the ordinary listing factors apply. [Footnote 114: 42 U.S.C. § 6921(c).]. This makes sense. Once EPA has found that regulation of coal ash is warranted, it would defeat RCRA’s overarching purpose to reg ulate coal ash less protectively than the statute and implementing regulations require. Because none of the relevant provisions of the Bevill Amendment requires EPA to list coal combustion waste pursuant to the Bevill study factors, EPA must make a final l isting decision based on the regulatory listing criteria, which do not include stigma or even encouragement of reuse as a factor.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under s ubtitle 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

- 10495

- 18 

### 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: 10.4.7 

### Comment Excerpt Text: b. The Bevill factors do not require EPA to consider stigma in deciding whether regulat ion
is warranted.

Not only is EPA not permitted to consider stigma in determining whether to list coal ash as a Subtitle C waste, the Bevill factors do not require EPA to consider stigma in making its threshold determination whether regulation is warrante d. The Bevill factors are as follows:

(1) the source and volumes of such material generated per year; (2) present disposal and utilization practices; (3) potential danger, if any, to human health and the environment from the disposal and reuse of
such materials; (4) documented cases in which danger to human health or the environment from surface runoff or leachate has been proved; (5) alternatives to current disposal methods; (6) the costs of such alternatives; (7) the impact of those alternatives o n the use of coal and other natural resources; and (8) the current and potential utilization of such materials. [Footnote 115: 42 U.S.C.A. §51 7

6982(n).].

None of these factors directs EPA to consider the impacts of regulation on beneficial use or

reuse, m uch less potential stigma impacts. Unlike the statute at issue in Hazardous Waste
Treatment Council , which provided that EPA “shall ensure that the recovery and reuse of used oil are not discouraged,” [Footnote 116: Id.] the Bevill study factors require on ly that EPA consider “the current and potential utilization of such materials.” Thus, there is no need for EPA to consider stigma to determine whether regulation of coal ash is appropriate, and indeed, EPA’s previous studies of these factors in 1993 and ag ain in 1999 did not even mention the word stigma. [Footnote 117: See U.S. EPA, Report to Congress: Wastes from the Combustion of Coal from Electric Utility Plants (EPA/530

- SW

- 88

- 002 (Feb. 1998); U.S. EPA, Report to Congress:
Wastes from the Combustion of F ossil Fuels (EPA 530

- R

- 99

- 010) (Mar. 1999).].

In 2000, when EPA made yet another a determination (this time that regulation was warranted under Subtitle D), EPA considered stigma but admitted that it is unorthodox and in fact contrary
to the RCRA statute to make stigma a deciding factor. Thus, EPA admitted that “[n]ormally, concerns about stigma are not a deciding factor in EPA’s decisions under RCRA, given the central concern under the statute for protection of human health and the environment.” [Footnot e 118: U.S. EPA, Notice of Regulatory Determination on Wastes From the Combustion of Fossil Fuels, 65 Fed. Reg. 32,214, 32,217 (May 22, 2000) (to be codified at 40 C.F.R. pt. 261).]. Nevertheless, EPA decided to justify its decision in large part on stigma , reasoning that: (1) Subtitle D would be “fully effective in protecting human health and the environment”; and (2) beneficial use plays “a large and salutary role . . . for this waste.” [Footnote 119: Id.]. In the intervening years since the 2000 regulato ry determination, it has become apparent (1) that federally enforceable regulation of coal ash is essential and that Subtitle D would not be fully protective of human health and the environment [Footnote 120: See Section V, infra.] and (2) that many uses t hat were previously deemed “beneficial,” including structural fills, have now been proven to cause significant harm including proven “damage cases.” [Footnote 121: See Section II.D.d., supra.]. Consequently, EPA cannot justify another decision to elevate s tigma concerns over grave health and environmental concerns that mandate a Subtitle C designation. EPA is charged with protecting human health and the environment, and that is the lens through which EPA is directed to look at the Bevill study factors, incl uding any factor that arguably implicates stigma. Congress specifically instructed EPA to “submit a report on the adverse
effects on human health and the environment , if any, of the disposal and utilization” and that report is the document in which the Bev ill factors come into play. [Footnote 122: 42 U.S.C. § 6982(n) (emphasis added).].

c. EPA has fielded stigma concerns appropriately in the past.

In the past, EPA has given little weight to stigma arguments where the public could be educated
that uses in different settings can have different toxicities. Thus, in 1990, EPA caused seven

ozone

- depleting chemicals to be listed as “toxic chemicals subject to reporting under section 313 of the Emergency Planning and Community Right

- to

- Know Act of 1986 (EPCRA)” despite concerns raised that the listing would stigmatize recycling of these chemicals. [Footnote 123: U.S. EPA, Final Rule: Ozone Depleting Chemicals; Toxic Chemical Release Reporting; Community Right

- To

- Know; Addition of Chemicals, 55 Fed. Reg. 31,594 (A ug. 3, 1990) (to be518

codified at 40 C.F.R. pt. 372).]. EPA explained that by listing these chemicals as “toxic
chemicals” it did not “contend” that these were “directly toxic,” and it properly assumed that the public was savvy enough to recognize that toxic pollutants in different scenarios and degrees could be more, less, or non

- toxic:

"EPA does not contend that these chemicals are directly toxic. EPA hopes that industry, government, and the public will recognize and consider differences in degree and typ e of toxicity of different chemicals when making decisions about those chemicals.” [Footnote 124: Id. at 31,596.].

EPA went on to explain that “where EPA believes that a chemical meets the statutory criteria for listing, it cannot choose not to list the chemical simply because its listing may stigmatize the chemical. [Footnote 125: Id.]. Similarly, here, EPA cannot choose to avoid a Subtitle C listing on stigma grounds, and the public is capable of understanding that coal ash when dumped into
unlined land fills and surface impoundments poses risks that do not pertain when it is put to a beneficial, encapsulated use.

Where EPA has been willing to entertain stigma concerns, it has determined that it could “avoid conceivable stigmatization” by altering the n ame of the material when recycled even when all announcement regarding permits for facilities managing these materials were required to refer expressly to “hazardous waste.” [Footnote 126: EPA, Final Rule: Hazardous Waste Management System; Definition of S olid Waste, 50 Fed. Reg. 614 (Jan. 4, 1985) (codified at 40 C.F.R. pts. 260, 261, 264, 265, &266).]. EPA explained:

"To avoid conceivable stigmatization, EPA proposed that hazardous wastes that are to be recycled be called “regulated recyclable materials .” Most comments favored this approach, and we are adopting it in the final rule, choosing the less cumbersome name “recyclable material.” As stated in the proposal, however, all Section 7004(b) announcements and notices regarding permits for facilities ma naging these materials must still refer to hazardous waste." [Footnote 127: Id. at 646.].

Here, the special waste designation, which would apply to coal ash all the time, would go even further to address potential stigma concerns.

d. The courts disfavo r stigma arguments.

Finally, courts are understandably skeptical about stigma arguments. For instance, in 2005, the Ninth Circuit reversed a preliminary injunction granted by the District Court of Montana (to enjoin implementation of a rule that would hav e reversed a ban on importation of cows from Canada following a mad cow epidemic) because the preliminary injunction was based in part on an unsubstantiated “stigma” claim. The court found that:

"The record does not support the district court’s alarmist f indings that the “irreparable economic harm” the district court foresaw from the stigma of Canadian beef will actually befall the American beef industry. Following the case of BSE diagnosed in a Washington State cow in 2003, consumer demand for, and confid ence in, American beef remained strong. According to519

USDA, American demand for beef in 2004 is estimated to have increased seven to eight percent over 2003 levels. Yet, Canadian beef was flowing into this country throughout 2004 under permits issued by USD A. This evidence belies the district court's prediction of catastrophic injury to the U.S. beef industry." [Footnote 128: Ranchers Cattlemen Action Legal Fund United Stockgrowers of America v. U.S. Dep’t Agriculture, 415 F.3d 1078, 1104

– 05 (9th Cir. 2005) (internal citations omitted).].

Similarly here, there is no reason to give credence to industry’s “alarmist” stigma arguments.

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

- 2011

- 0392

- 0199

- 1 

### Organization 1 

### : Portland Cement Association (PCA) 

### Commenter 1 : Robert Hirsch Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sect ions: 10.4.3 

### Comment Excerpt Text: Also included with our comments is the second part of the comments previously submitted to the underlying rulemaking docket jointly by the following organizations: EarthJustice, Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, and Physicians for Social Responsibility. Those organizations submitted their original comments to the underlying rulemaking in two parts. The f irst part has been included in the NODA docket as EPA

- HQ

RCRA

- 2011

- 0392

- 0119. The second part was not included, but EPA has acknowledged that it should have been included in the NODA docket. As of today it has not yet been inserted into the
NODA docket. Fo r that reason, we are including in it.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0199

- 10 

### Organization 1 

### : Portland Cement Association (PCA) 

### Commenter 1 : Robert Hirsch Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.4.7520



### Comment Excerpt Text: D. The Joint Advocates’ claim that “[t]he courts disfavor stigma arguments” has no merit. In
their comments, the Joint Advocates contend that “[t]he courts disfavor stigma arguments,”
EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 126 (previously EPA

- HQ

- RCRA

- 2009

- 0640

- 10495.1 at 126). To support this contention, they cite to, and quote from, the decision, Ranchers Cattl emen Action Legal Fund United Stockgrowers of America v. U.S. Dep't Agriculture, 415 F. 3d 1078 (9th Cir. 2005) (Ranchers). As we explain, that decision has no relevancy here and their reliance on that case is entirely misplaced.

The specific text from th e Ranchers decision on which the Joint Advocates rely is quoted on pages 126

- 27 of their comments. EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 126

- 27 (previously EPA

HQ

- RCRA

- 2009

- 0640

- 10495.1 at 126

- 27). On close reading of that quoted decisional text, it
becomes immedi ately clear that the court in that case was not dealing with Bevill wastes. It is also clear that the case had nothing whatsoever to do with the degree of proof that the Bevill Amendment requires be shown to demonstrate stigma. Rather, the only determinati on regarding stigma addressed by the Ranchers court involved the district court’s issuance of a final rule of the Department of Agriculture (USDA) and, more specifically, whether the facts on which district court had relied to demonstrate that “the Final R ule carried a definitive risk of causing "significant irreparable harm." 359 F.Supp.2d at 1073.

While PCA acknowledges that a demonstration of “irreparable harm” is the evidentiary standard required to obtain a preliminary injunction, EPA’s decision on wh ether to regulate CCRs under RCRA subtitle C or D has nothing whatsoever to do with a preliminary injunction. Neither does the Bevill Amendment impose an irreparable harm standard. Rather, as Administrator Browner’s 2000 determination held, it is sufficien t for industry to show only that “the link to subtitle C would nonetheless tend to discourage purchase and re

- use of the waste.” 65 Fed. Reg. at 32217. In other words, the Bevill Amendment only requires that there is a “possibility that the [subtitle C] ap proach could have unintended consequences.” Id.

In sum, The Joint Advocates’ reliance on Ranchers is misplaced. Ranchers does not stand for the proposition for which it was cited by the Joint Advocates, i.e., that “[t]he courts disfavor stigma arguments.” Further, while the concept of “stigma” was mentioned in that case, the case has no relevancy whatsoever to this Bevill waste rulemaking and, in particular, to the stigma concerns which industry has raised with respect to the regulation of CCRs under subti tle C and EPA’s required consideration of stigma as a Bevill factor. [Footnote 24: As articulated in the 9th Circuit’s Ranchers decision, stigma” was mentioned once and in a very limited context involving the court’s review of the merits of a preliminary i njunction: “The district court identified three ways in which the Final Rule would cause such harm: the increased risk of vCJD to American beef consumers, unspecified environmental injury stemming from USDA’s failure to comply with NEPA, and injury to the U.S. beef industry and the U.S. economy that would result from a "stigma" that tainted Canadian beef would inflict upon the U.S. meat supply. [Citation omitted.] We believe the district court’s calculus overstated the harm that would result from the rule.” 415 F. 3d at 1104.] Accordingly, the focus of these NODA comments will now shift to a discussion of the additional examples of stigma.521

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0199

- 2 

### Organization 1 

### : Portland Cement Association (PCA) 

### Commenter 1 : Robert Hirsch Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.2.2 10.4.3 2.1.3 2.2 4.1.1 

### Comment Excerpt Text: The following summarizes the specific issues we address in these comments:

- PCA’s comments in response to the NODA, including the detailed additional examples of stigma that we provide herein, focus on and are in direct response to specific documents, i.e., the Fortuna analysis (EPA

- HQ

- RCRA

- 2011

- 0392

- 0026) and the comments submitted by the Joint Advocates (EPA

- HQ

- RCRA

- 2011

- 0329

- 0119), that EPA has made a subject of this NODA.

- Former Administrator Browner’s sensitivity to avoid needlessly creating a stigma and instead regulate initially under subtitle D was, and still is sound policy: “If this conclusion [regulating under subtitle D] turns out not to be warranted, we would be inclined to re

- examine our current decision.”

- Since submitting our initial comments, PCA has learned of a number of additional examples of stigma involving coal combustion residuals (CCRs) and the reuse of CCRs for beneficial purposes, which discredit and rebut the claims by the Joint Advocates and Fortuna that regul ating CCRs under subtitle C will not stigmatize CCRs used for beneficial purposes.

- EPA’s Final Plan for conducting periodic retrospective reviews of existing regulations lends strong support for regulating CCRs under subtitle D and not under subtitle C.

- The results of a recent sociological study conducted by the University of New Hampshire corroborate the validity of industry’s concerns that CCRs used for beneficial purposes can be, and are being, stigmatized by the array of negative information being published and disseminated by the advocates of the subtitle C option, and by others, and that such information is fostering and reinforcing the public’s opposition to beneficial uses of CCRs generally and, in particular, belief that products containing CC Rs should be avoided whenever possible.

- A recent article published by, and for, the property and casualty sector of insurance industry, calling CCRs the “next asbestos,” provides good and reliable evidence that CCRs have already been stigmatized.

- Com ments submitted to this docket by opponents of the subtitle D options provide an excellent demonstration of the efforts taking place to smear and ultimately stigmatize CCRs and the reuse and recycling of CCRs.522

- The campaign against the use of CCRs for sa ndblasting and roofing shingles provides a good example of how negative advertising is already being used and re

- circulated in order to stigmatize products whose ingredients include CCRs.

- EPA should not treat a stigma report prepared for the leading opp onents to the subtitle D option as “expert opinion” and/or give the report’s analysis and conclusions deference and/or preference over the stigma concerns and comments supporting stigma submitted by industry and others.

- EPA is required by law to conside r the stigma effect that regulating CCRs under RCRA subtitle C would, or might, have on the current and future beneficial use of CCRs.

- Opponents of the subtitle D options have not demonstrated that the stigma concerns that have been presented to EPA are fallacious.

- Industry, state governments, and others have demonstrated in comments and with examples that the stigmatization of CCRs reuse has already begun to occur.

- Individual members of the U.S. Green Building Council’s (USGBC) “knowledgeable pane l of professionals” have posted advice and recommendations on the USGBC website which are effectively lending unwarranted credence to the negative information and stigma being promoted
about CCR reuses.

- Opponents of the subtitle D options have presented erroneous legal arguments regarding the Bevill factors and their irrelevancy to EPA’s final decision in this rulemaking.

- Opponents of the subtitle D options have effectively conceded that the potential for CCRs and their reuses to be stigmatized does e xist.

- Claims that the courts disfavor stigma arguments have no merits.

- Opponents of the subtitle D options are engaging in a smear campaign that includes the widespread dissemination of false and misleading information, innuendo, and the raising of

s pecious issues, all carefully crafted to inflame the public and instill public fear of CCRs and virtually all reuses of CCRs.

- Opponents of the subtitle D options erroneously and disingenuously argue that if a particular reuse of CCRs might be “dangerous ” it cannot be “beneficial.”

- Opponents of the subtitle D options have sought to demonize all unencapsulated uses of CCRs, and do so without any consideration of whether appropriate control measures could be put into place or if a particular use is minim al.

- Opponents of the subtitle D options have cited research results for erroneous propositions and/or out of context in order to promote public fear of, and opposition to, encapsulated reuses of CCRs generally.523

- Opponents of the subtitle D options hav e cited examples of “miscellaneous” reuses of CCRs that they know, or at the very least should know, are not relevant to this rulemaking, in order to stimulate public doubt and fear about CCR recycling and reuse and thus foster public opposition
to the use of coal as an industrial fuel source.

- The negative comments and advocacy tactics being used by opponents of the subtitle D options will be a direct cause of the decrease in the reuse and recycling of CCRs that will occur in the event CCRs are regulated under subpart C.

- The public education program that opponents of the subtitle D options advocate will be incapable of overcoming the stigma and fear of CCR reuses that those opponents have already generated and are continuing to promote. Response: The Agency acknowledges and appreciates the comment and refers the comment to the specific sections of the preamble pertaining to their specific comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0199

- 20 

### Organization 1 

### : Portland Cement Association (PCA) 

### Commenter 1 : Robert Hirsch Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.4.3 10.4.7 

### Comment Excerpt Text: [ATTACHMENT: See original comment for Attachment A2

-- PCA s ubmitted the second part of the comments previously submitted to the proposed CCR rule docket jointly by the following organizations: EarthJustice, Environmental Integrity Project, Sierra Club, Natural Resources Defense Council,
Southern Alliance for Clean Energy, Southern Environmental Law Center, and Physicians for Social Responsibility.] Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0199

- 6 

### Organization 1 

### : Portland Cement Association (PCA) 

### Commenter 1 : Robert Hirsch Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.4.3 

### Comment Excerpt Text: 2. Contrary to the Fortuna report, as well as arguments pre sented by other advocates of the524

subtitle C option, EPA is required by law to consider the stigma effect that regulating CCRs under RCRA subtitle C would, or might, have on the current and future beneficial use of CCRs. [Footnote 17: Fortuna’s argument tha t EPA’s consideration of stigma is illegal was also made in the second part of the comments submitted by the Joint Advocates (EarthJustice, Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, and Physicians for Social Responsibility), EPA

HQ

- RCRA

- 2009

- 0640

- 10495.1, that EPA failed to insert into the NODA docket. Fortuna’s purported legal analysis is discussed in this section of PCA’s NODA comments. PCA rebutt al to the legal analysis presented by Joint Advocates is addressed separately in Section B of these comments.] Fortuna’s report asserts it would be “illegal” for EPA to consider the factor of stigma in this rulemaking. See EPA

- HQ

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- 0026 at 28 (previously EPA

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- RCRA

2009

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- 9634.1 at 28), where the report’s contention is captioned: “‘Stigma’ Under RCRA is Illegal.” The report’s contention is wrong, legally!

Fortuna’s assertion is based on the author’s reliance upon a decision by the Circuit Court of Appeals for the District of Columbia, Hazardous Waste Treatment Council v. EPA, 861 F. 2d 270 (D.C. Cir. 1988) (HWTC). Fortuna’s reliance on that decision is misinformed and misplaced. HWTC did not concern the scope of EPA’s authority under the Be vill Amendment that is the subject of this rulemaking. Rather, HWTC dealt solely with the EPA Administrator’s authority to decide “whether to list or identify used automobile and truck crankcase oil , i.e.,

non

- Bevill wastes, as hazardous waste” (emphasis supplied), pursuant to 42 U.S.C. 6935. HWTC has no relevancy to this rulemaking whatsoever. [Footnote 18: The HWTC case was also cited in comments submitted to this docket by the Center for Progressive Reform (CPR). EPA

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RCRA

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- 0640

- 8847 and in the Jo int Advocates comments. EPA

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- 2009

- 0640

- 10495.1. CPR’s comments, however, do not rely upon the identical reading (i.e., misreading) of HWTC that both the Fortuna analysis and Joint Advocates present in their respective comments. Rather, CPR cites HWT C as a basis for EPA to downplay the relevance, or at very least insignificance, of stigma as a factor to be considered in RCRA rulemakings, asserting that HWTC demonstrates that “Congress was concerned that forcing an agency to worry about stigma effects when it is sorting through waste streams to determine which are hazardous could well prove a recipe for paralysis.” EPA

- HQ

- RCRA

- 2009

- 0640

- 8847 at 16. However, CPR’s reliance on HWTC is equally in error, and irrelevant to a Bevill rulemaking, just as Fortun a and the Joint Advocates err in their reliance on HTWC. In fact, the Joint Advocates have effectively conceded the irrelevance of HWTC in their comments, EPA

- HQ

- RCRA

- 2009

- 0640

- 10495.1 at 123, wherein they state that the controlling statute in HWTC was the Used Oil Recycling Act, 42 U.S.C. § 6935(a) and not the Bevill Act provision that governs here, 42 U.S.C. § 6982(p).]

Contrary to Fortuna, the factors specified by RCRA section 8002(n), commonly

- known as the
Bevill Amendment and codified at 42 U.S.C. 698 2(p), are what exclusively govern this rulemaking; not § 6935. As former EPA Administrator Browner acknowledged unequivocally in her 2000 determination: “Section 8002(n) (8) directs us to consider, among other factors, “the current and potential utilizatio n of such materials” (emphasis supplied), 65 Fed. Reg. at 32217 (May 22, 2000). That directive, according to Administrator Browner, clearly includes EPA’s need to consider the impact that a stigma would have on both the current and potential beneficial

use of CCRs. [Footnote 19: It is worth noting that the Center for Progressive Reform’s comments, cited above in fn. 16, conceded that Congress did, in fact, legislate the specific525

directive that EPA consider stigma as part of the Bevill amendment. EPA

- HQ

- RCRA

- 2009

- 0640

- 8847 at 16.]

Administrator Browner properly recognized the need to consider legitimacy of industry’s individual and collective stigma concerns in her 2000 Bevill determination. She was likewise
correct when she concluded the need for EPA to avo id regulating Bevill wastes in a manner that could create a stigma: “We do not wish to place any unnecessary barriers on the beneficial uses of these wastes, because they conserve natural resources, reduce disposal costs and reduce the
total amount of wast e destined for disposal.” Id. She also rightly observed: “If this conclusion [regulating under subtitle D] turns out not to be warranted, we would be inclined to re

- examine our current decision.” 65 Fed. Reg. at 32218.

Regardless of what Fortuna, and his report’s sponsors and supporting organizations, now urge, EPA cannot ignore considering the stigma effects and consequences that regulating CCR wastes under RCRA subtitle C could have on the current and potential beneficial use of such materials.
As EPA ha s previously determined, it is statutorily required to consider and take into account the stigma and other unnecessary barriers that would be imposed on beneficial uses of CCRs if the subtitle C option is adopted.

The statute has not changed since Adminis trator Browner made her determination in 2000 and no amount of effort by subtitle C’s advocates to reinterpret the statute can

– or should

-- change that. The statutory analysis and legal precedent that Administrator Browner set is the path that now

contro ls. For EPA to reject its previous reading of § 8002(n)(8) and agree with Fortuna would be arbitrary. Therefore, contrary to what the Fortuna analysis, and what its sponsors and supporters also contend, i.e., that it is illegal for EPA to consider stigma, the very opposite is true. In short, it would be illegal if EPA fails to consider stigma. See, also Section B, below, which rebuts a similar argument presented in comments of the Joint Advocates.

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

- 2011

- 0392

- 0199

- 8 

### Org anization 1 

### : Portland Cement Association (PCA) 

### Commenter 1 : Robert Hirsch Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.4.3 2.2 2.1.3 

### Comment Excerpt Text:

B. Comments submitted to the docket present erroneous legal arguments regarding the Bevill factors and their relevancy to EPA’s final decision in this rulemaking. In comments submitted by Joint Advocates (EarthJustice, Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, and526

Physicians for Social Responsibility) the following claims have been made: “While the Bevill factors arguably require EPA at least to consid er stigma, the Bevill factors do not govern EPA’s final decision on its proposed rule,” EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 122 (previously EPA

HQ

- RCRA

- 2009

- 0640

- 10495.1 at 122), and that, “[e]ven if the stigma concerns raised by industry were legitimate . . . t hey would not provide a valid basis for declining to regulate coal ash under RCRA Subtitle C.” Id. The Joint Advocates further assert, as Fortuna did in his analysis: “The D.C. Circuit’s decision in Hazardous Waste Treatment Council v. U.S.E.P.A. is
direct ly on point.” EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 123 (previously EPA

- HQ

- RCRA

- 2009

- 0640

- 10495.1 at 123). PCA disagrees.

The above

- quoted claims present the Joint Advocates’ legal assertions relating to the scope and manner of EPA’s rulemaking authority under th e Bevill Amendment. As such, if these assertions are correct, they would control whether, when, and how, the issue of stigma and, in particular, the presentations of factual examples of stigma, can be considered by EPA in the course of this rulemaking. Und er the Joint Advocates’ theory, industry’s factual presentations of examples of stigma would have no relevancy to EPA’s decision to adopt the subtitle C option, because “the Bevill factors do not govern EPA’s final decision on its proposed rule,” EPA

- HQ

- RC RA

- 2011

- 0392

- 0119 at 122 (previously EPA

- HQ

- RCRA

- 2009

- 0640

- 10495.1 at 122). While PCA disagrees with the Joint Advocates, if it is assumed they are correct for sake of argument, it must also be assumed that the Joint Advocates would have presented this leg al argument at the beginning of their comments addressing stigma, because the existence of such clear

- cut legal restrictions on EPA’s authority would supersede EPA’s consideration of stigma and other matters of fact and would have avoided any need for EPA, or the Joint Advocates, to address stigma at all. Clearly that would be the logical and most expedient thing to do. Thus, if HWTC applies and is as “directly on point” as they claim, the Joint Advocates would only have needed a few paragraphs, or perhaps only a footnote, to dispose of the stigma issue and EPA’s consideration of stigma.

The Joint Advocates did not present their legal argument upfront, however. In fact, their legal arguments do not even begin until page 122 of their comments, i.e., 11 pages into their comments’ discussion of stigma.

Moreover, the Joint Advocates discussion of stigma in their comments was not limited to just a few paragraphs, or a footnote. Rather, the Joint Advocates’ initial, as well as their primary, focus on stigma deals with matters involving facts. Beginning on page 111 of their comments, and ending on page 153, they present a lengthy dissertation on why industry’s claims are, among things, “speculative,” EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 114 (previously EPA

- HQ

- RCRA

2009

- 06 40

- 10495.1 at 114), and amount to nothing more than industry’s presentation of “alarmist stigma arguments” that should not be given credence. EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 127 (previously EPA

- HQ

- RCRA

- 2009

- 0640

- 10495.1 at 127).

PCA believes it is significa nt that the Joint Advocates felt it was necessary to devote more than 41 pages of their comments to the issue of stigma, when, according to their legal theory, virtually all of that discussion should have been superfluous. It is also significant that the J oint Advocates felt the need to commission and pay Fortuna to prepare his stigma report, which they appended to their comments as Appendix N. Clearly, the Joint Advocates’ actions speak much louder than527

their words. Clearly too, the Joint Advocates demonst rate they have no confidence in the merits and correctness of their legal argument. As we explain below, they have good reason.

Earlier in these NODA comments we demonstrated that the DC Circuit’s decision in HWTC is neither on point nor relevant to this rulemaking. PCA does not feel it is necessary to repeat that discussion here and we therefore refer EPA back to pages 9

- 11 of these NODA comments, supra.

However, PCA will address here another legal argument that was also raised in the Joint Advocates’ co mments, which is based on their flawed interpretation of the Bevill Amendment and its interplay with 42 U.S.C. § 6921. According to the Joint Advocates:

While EPA must determine whether to promulgate regulations based on consideration of the
Bevill factor s, once it has made the decision to regulate, the ordinary listing factors apply. This makes sense. Once EPA has found that regulation of coal ash is warranted, it would defeat RCRA’s overarching purpose to regulate coal ash less protectively than the stat ute and implementing regulations require. Because none of the relevant provisions of the Bevill Amendment requires EPA to list coal combustion waste pursuant to the Bevill study factors, EPA must make a final listing decision based on the regulatory listin g criteria, which do not include stigma or even encouragement of reuse as a factor.

EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 124 (previously EPA

- HQ

- RCRA

- 2009

- 0640

- 10495.1 at 124).

Based on the Joint Advocates’ theory, five out of the eight individual Bevill factors would be rendered nugatory and, as a result, EPA’s consideration of those factors would be superfluous.

- Factor 1: “the source and volumes of such materials generated each year;”

- Factor 5: “alternatives to current disposal;”

- Factor 6: “the cost of s uch alternatives;”

- Factor 7: “the impact of those alternatives on the use of coal and other natural resources;”

- Factor 8: “the current and potential utilization of such materials.”

According to the Joint Advocates’ statutory analysis, therefore, while acknowledging the obvious fact that the Bevill Amendment directs EPA to analyze such factors, they essentially argue that none of these five factors is relevant to EPA’s regulatory decision, because “the Bevill factors do not govern EPA’s final decision o n its proposed rule.” EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 122 (previously EPA

- HQ

- RCRA

- 2009

- 0640

- 10495.1 at 122).

In other words, the Joint Advocates argue that the Bevill Amendment imposed what amounts to
an “all

- or

- nothing” scheme for regulating Bevill wastes. Under this theory, if CCRs need to be regulated, they must be regulated under subtitle C, or they cannot be regulated at all. Therefore, according to their theory, if, after considering the Bevill factors, EPA determines that CCRs should not be regulated under subtitle C, EPA would be prohibited from regulating CCRs under RCRA subtitle D, because “the Bevill factors do not govern EPA’s final decision on its proposed
rule.” EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 122 (previously EPA

- HQ

- RCRA

- 2009

- 0640

- 10495.1 at 122).528

To put this into perspective, under the Joint Advocates’ theory, if EPA determines that the unregulated disposal of CCRs poses a potential danger to human health and the environment (Bevill factor 3), but also determines that CCRs should not be regulated under subtitle C, because doing so would reduce current and potential future reuse and recycling of CCRs (Bevill factors 7 and 8) and increase landfill disposal, EPA could not regulate CCRs under subtitle D, even if the risk to public health and the envir onment could be appropriately addressed under subtitle D, and the amount of CCRs being disposed of in landfills would be significantly decreased. The Joint Advocates’ “all

- or

- nothing” construction of the statute is nonsensical. It would be extremely short

- sighted, and arbitrary, for EPA to adopt the Joint Advocates’ “all

- or

nothing” theory.

At a minimum, if the Joint Advocates’ statutory construction were adopted by EPA, the Agency’s analysis of at least five of the eight Bevill factors would be rendered e ffectively meaningless, because regardless of what information were developed under those factors, the information would have no bearing on EPA’s final regulatory decision. The Joint Advocates’ construction ignores a long line of Supreme Court decisions. A s the Supreme Court opined in Duncan v. Walker, 533 U. S. 167, 174 (2001), for example: “It is 'cardinal principle of statutory construction’ that 'a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or wo rd shall be superfluous, void, or insignificant." See, also United States v. Menasche, 348 U. S. 528, 538

- 539 (1955) (“It is our duty to give effect, if possible, to every clause and word of a statute [citation omitted] rather than to emasculate an entire section."); Montclair v. Ramsdell, 107 U. S. 147, 152 (1883) ("It is the duty of the court to give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the m eaning of the language it employed.”).

The 2000 Bevill determination that Administrator Browner issued makes it quite clear that EPA is well aware of this basic canon of statutory construction. It is also abundantly clear from the
2000 determination that the Agency has rejected the Joint Advocates’ “all

- or

- nothing” reading of the statute. Below we quote a number of statements from Administrator Browner’s 2000 determination that speaks directly to the statutory construction that the Joint Advocates have
adv anced in their comments. Her statements support PCA’s reading of the statute and make it abundantly clear that the Joint Advocates’ interpretation of the statutory is wrong:

"Today’s decision was, in the Agency’s view, a difficult one, given the many comp eting considerations discussed throughout today’s notice. After considering all of the factors specified in RCRA section 8002(n), we have decided as discussed further below, that the decisive factors are the trends in present disposal and utilization pract ices (section 8002 (n)(2)), the current and potential utilization of the wastes (Section 8002 (n)(8), and the admonition against duplication of efforts by other federal and state agencies."

65 Fed. Reg. at 32215.

"We believe, however, for the reasons des cribed below, the better approach at this time to ensuring adequate management of FFC wastes is to develop national regulations under subtitle D rather than subtitle C. EPA has reached this conclusion in large part based on consideration of529

“present dispos al and utilization practices.” RCRA § 8002(n)."

65 Fed. Reg. at 32216.

EPA’s 2000 determination further makes clear that, in selecting which subtitle of RCRA CCRs should be regulated under, the factor of stigma does indeed provide a valid basis for EPA t o decline to regulate CCRs under RCRA subtitle C. The following statement from Administrator Browner’s 2000 determination demonstrates this clearly, and unequivocally:

"We also see a potential downside to pursuing a subtitle C approach. Section 8002(n)(8) directs us to consider, among other factors, “the current and potential utilization of such materials.’’ Industry commenters have indicated that they believe subjecting any coal combustion wastes to a subtitle C regime would place a significant stigma on these wastes, the most important effect being that it would adversely impact beneficial reuse. As we understand it, the concern is that, even though beneficially reused waste would not be hazardous under the contemplated subtitle C approach, the link to su btitle C would nonetheless tend to discourage purchase
and re

- use of the waste. We do not wish to place any unnecessary barriers on the beneficial uses of these wastes, because they conserve natural resources, reduce disposal costs and
reduce the total amo unt of waste destined for disposal. [Emphasis supplied] States and industry have also expressed concern that regulation under subtitle C could cause a halt in the use of coal combustion wastes to reclaim abandoned and active mine sites. We recognize that

w hen done properly, minefilling can lead to substantial environmental benefits. EPA believes the contingent management scheme we discussed should diminish any stigma that might be associated with the subtitle C link. Nonetheless, we acknowledge the possibil ity that the approach could have unintended consequences. We would be particularly concerned about any
adverse effect on the beneficial re

- use market for these wastes because more than 23 percent (approximately 28 million tons) of the total coal combustion waste generated each year is beneficially reused and an additional eight percent (nine million tons) is used for minefilling. EPA believes that such reuse when performed properly, is by far the environmentally preferable destination for these wastes, incl uding when minefilled. Normally, concerns about stigma are not a deciding factor in EPA's decisions under RCRA, given the central concern under the statute for protection of human health and the environment. However, given our
conclusion that the subtitle D approach here should be fully effective in protecting human health and the environment, and given the large and salutary role that beneficial reuse plays for this waste, concern over stigma is a factor supporting our decision today that subtitle C regula tion is unwarranted in light of our decision to pursue a subtitle D approach. [Emphasis supplied]

Additionally, in a 1993 regulatory determination, EPA previously addressed large volume coal combustion wastes generated at electric utility and independent power producing facilities that manage the wastes separately from certain other low volume and uniquely associated coal combustion wastes (see 58 FR 42466; August 9, 1993). Our 1993 regulatory determination maintained the exemption of these large volume co al combustion wastes from being regulated as hazardous wastes when managed separately from other wastes (e.g., in monofills). We intend that the national subtitle D regulations we develop for the coal combustion wastes subject to today’s regulatory determi nation will also be applicable to the wastes covered in the 1993530

regulatory determination for the reasons listed below, so that all coal combustion wastes are consistently regulated for placement in landfills, surface impoundments, and minefills.

- The co

- managed coal combustion wastes that we studied extensively in making today’s regulatory determination derive their characteristics largely from these large

- volume wastes and
not from the other wastes that are co

- managed with them.

- We believe that the r isks posed by the co

- managed coal combustion wastes result principally from the large

- volume wastes.

- These large

- volume coal combustion wastes, account for over 20% of coal combustion wastes.

As we proceed with regulation development, we will also take enforcement action under RCRA section 7003 when we identify cases of imminent and substantial endangerment. We will also use Superfund remedial and emergency response authorities under the Comprehensive Environmental Response Compensation and Liabilities Act (CERCLA), as appropriate, to address damages that result in risk to human health and the environment.

However, as stated above, this decision was a difficult one and EPA believes that, absent our conclusions regarding the current trends in management of this waste, the waste might present sufficient potential threat to human health and the environment to justify subtitle C regulation. There are several factors that might cause us to rethink our current determination. First, and perhaps most importantly , if current trends toward protective management do not continue, EPA may well determine that subtitle C regulation is warranted for this waste. As we have stated, we do not believe the current gaps in the basic controls are acceptable, and our determinati on that subtitle C regulation is not warranted is premised to a large extent on our conclusion that subtitle D regulation will be sufficient to close these gaps. If this conclusion turns out not to be warranted, we would be inclined to re

- examine our curre nt decision."

65 Fed. Reg. at 32217

- 18.

In short, the following two conclusions regarding the applicability and application of the Bevill Amendment must be drawn from Administrator Browner’s 2000 determination. First, that the Bevill factors apply to the entirety of EPA’s regulatory decision regarding CCRs and not just to EPA’s determination whether CCRs should be regulated. Therefore, contrary to what the Joint Advocates’ comments contend, EPA’s application of the Bevill factors in this rulemaking should not be limited solely to the Agency’s decision whether to regulate to CCRs but also extends to EPA’s determination of how CCRs are listed, i.e., whether CCRs should be regulated under RCRA subtitle C or subtitle D. [Footnote 22: The Joint Advocates ignore the statutory construction the Agency adopted under former Administrator Browner. They instead assert, albeit erroneously: “Even if the stigma concerns raised by industry were legitimate

– which they

are not

– they would not provide a valid basis for decl ining to regulate coal ash under RCRA Subtitle C.” EPA

- HQ

- RCRA

- 2011

- 0392

- 0119 at 122 (previously EPA

- HQ

- RCRA

- 2009

- 0640

- 10495.1 at 122).] Second, Administrator Browner’s 2000 determination also made abundantly clear that the factor of stigma can indeed infl uence EPA’s decision whether to CCRs should be regulated under RCRA subtitle C or subtitle D. Based on Administrator Browner’s 2000531

determination, if regulating CCRs under subtitle C could, in fact, cause a stigma, the existence of that possibility will su ffice to provide EPA with a valid basis to decline to regulate CCRs under
subtitle C.

Accordingly, and contrary to the comments submitted by the Joint Advocates, the examples of stigma that industry provides bear directly upon EPA’s decision whether it wo uld be better to regulate CCRs under RCRA subtitle D, i.e., to decline to regulate them under subtitle C. Although PCA provided a number of examples of stigma in its original comments, because of the comments submitted by the Joint Advocates, and by Fortun a, we feel a need to submit additional examples of stigma that we learned of since submitting our original set of comments.

As further rebuttal to the comments of the Joint Advocates and also Fortuna, PCA provides a detailed discussion of additional examp les of stigma in Section E of these NODA comments,
below.

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

- 2011

- 0392

- 0248

- 3 

### Organization 1 

### : Headwaters Resources, Inc. 

### Commenter 1 : William Gehrmann III Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.2.2 2.1.3 10.2.2 

### Comment Excerpt Text: I. EPA Is Required to Consider the Beneficial Use Data and Information Under the Bevill
Amendment

As the Utility Solid Waste Activities Group ("USWAG") explained in its comments on the proposed ru le, [Footnote 1: Headwaters incorporates by reference those portions of USWAG's comments regarding the Bevill Amendment requirements and process, found at pages 27

- 41. Comments of The Utility Solid Waste Activities Group, The Edison Electric Institute, The American Public Power Association, and The National Rural Electric Cooperative Association on Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities; Propose d Rule, Docket
No. EPA

- HQ

- RCRA

- 2009

- 0640, at 27

- 41 (Nov. 19, 2010), available at www.regulations.gov.] EPA does not have authority to undertake this rulemaking because EPA properly decided to regulate CCRs under Subtitle D, rather than Subtitle C, in its 2 000 determination

-- a determination which EPA cannot now reverse. Headwaters agrees with this point. Further, as USWAG also stated and as we also agree, even if we assume that somehow EPA could now legally reverse its final 2000 regulatory determination for CCRs, EPA could only do that if it were to follow the Bevill amendment procedures set forth in the statute for regulating disposed CCRs as hazardous waste. See 42 U.S.C. §§ 6921(b)(3)(A) and (C), and 6982(n). As part of532

these procedures, EPA must "conduct a detailed and comprehensive study and submit a report on the adverse effects on human health and the environment, if any, of the disposal and utilization of fly ash waste, bottom ash waste, slag waste, flue gas emission control waste, and other byproduct materials generated primarily from the combustion of coal or other fossil fuels." 42 U.S.C. § 6982(n). This study must include a detailed analysis and consideration of a number of
factors:

(1) "the source and volumes of such material generated per year" ; (2) "present disposal and utilization practices"; (3) "potential danger, if any, to human health and the environment from the disposal and reuse of such materials"; (4) "documented cases in which danger to human health or the environment from surface runoff or leachate has been proved"; (5) "alternatives to current disposal methods"; (6) "the costs of such alternatives"; (7) "the impact of those alternatives on the use of coal and other natural resources"; and (8) "the current and potential utiliza tion of such materials."

42 U.S.C. § 6982(n). Factors (2) ("present disposal and utilization practices") and (8) ("the current and potential utilization of such materials") specifically relate to beneficial use of CCRs. Thus, under the Bevill Amendment, EPA is required to consider data and other information relating to beneficial use of CCRs in any rulemaking effort that could result in greater regulation
of CCRs. .

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.

Section 2.3

- Bevill Determination for CCRs Generated by Non

- Electric Utilitie s (35165

- 35166) Total Number of Submissions: 1 Total Number of Comments: 1



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09631

- 2 

### Organization 1 

### : Porter Wright Morris & Arthur LLP 

### Commenter 1 : Christopher R. Schaff Commenter Type: Law Firm
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: EPA's proposed rulemaking appears motivated by the "catastrophic releases such as occurred at the Tennessee Valley Authority's (TVA's) Kingston, Tennessee facility." (7 5 FR at 35132). EPA cites no other "catastrophic release" from any investor

- owned electric generation facility, yet533

EPA proposes to limit the scope of its proposed rule to CCRs from electric utilities. The rationale for limiting the regulation of CCRs to e lectric utilities is opaque at best, or (more likely) wholly lacking in the June 21,2010 Notice of Proposed Rulemaking. We would suggest that there is no rationale basis for limiting the proposed rule to electric utility CCRs.

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 VI that addresses the applicability of the rule.

Section 2.3.1

- EPA solicits info/data on CCRs generated by other industries (e.g., non

utility boilers, combined heat and power plants), such as volumes generated, characteristics of CCRs, co

- management with other wastes generated (35166, 35222) Total Number of Submissions: 16 Total Number of Comments : 21



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 31 

### 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 does not have specific information on non

- utility ash wastes. Many of these companies and industries transport their ash to MSW landfills, where they are co

- mingled.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06409

- 1 

### Organization 1 

### : State of Alaska 

### Commenter 1 : Kristin J. Ryan Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: E xamine Context Assigned/Due:
Other Sections: 7.1.1 

### Comment Excerpt Text: Within the preamble to the proposed rule, the EPA requests information on CCRs that are generated by non

- utility industries including volumes, characteristics, and management practi ces. The information in this section is intended to provide that information as well as a general summary of CCRs in Alaska.534

Coal Ash Management

In Alaska, the use of coal for production of electricity is limited to six power plants located
within the I nterior region of the state, in and around the city of Fairbanks. The coal burned by all six power plants comes from a single source, the Usibelli Coal Mine, located approximately 90 miles south of Fairbanks near the town of Healy. In 2009, the six Interio r Alaska power plants burned a combined total of 976,000 tons of Usibelli coal.

Four of the six power plants in Interior Alaska are non

- utilities that will be exempt from the proposed rule because those plants do not sell electricity and/or heat to the pu blic. These four include the power plants at Fort Wainwright Army Post, Eielson Air Force Base, Clear Air Force Station, and the University of Alaska Fairbanks (UAF). The two power plants that sell power to the public and will be subject to the proposed ru le are the Golden Valley Electric Association (GVEA) power plant in Healy and the Aurora Energy Services (AES) power plant in Fairbanks. The GVEA power plant produces electricity that is sold to GVEA customers; the AES power plant is a combined heat and po wer plant that sells electricity to GVEA and steam heat to municipal, business, and residential properties within the city of Fairbanks.

Together, the six power plants generate about 100,000 tons of CCRs each year. Fifty

- five percent of that amount is gen erated by the four non

- utility power plants. The CCRs from the three military power plants are disposed in ADEC

- permitted landfills on military property and the CCRs from the UAF power plant are stored by local businesses for use or sale as fill material

w ithin the Fairbanks area. The GVEA and AEC power plants generate 45% of the CCRs produced each year. The CCRs from the GVEA power plant are disposed in an ADEC

- permitted landfill within the boundaries of the Usibelli Coal Mine; CCRs from the AES power plan t are stored by local businesses for use or sale as fill material within the Fairbanks area.

The ADEC has access to analytical data from CCRs provided to us by power plant operators, consultants, and the USGS. Those data span about 15 years and include bo th total metals and Toxicity Characteristic Leaching Procedure (TCLP) results. With regard to hazardous waste characterization, although a reported total metals concentration occasionally exceeds the inferred maximum of 20 times the TCLP limit, TCLP result s for Alaskan CCRs are routinely non

detectable or many orders of magnitude below the corresponding TCLP limit. Based on the available data, the ADEC regulates CCRs as an inert waste, defined in state regulation as a "solid waste that has a low potential t o pollute air or water, and that does not normally attract wildlife."

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 38 

### 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 Government535

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



### Comment Excerpt Text : There is a solicitation for information and data on CCR generated by non

- utilities and mixes with other wastes at the end of the section entitled “F. EPA is not proposing to revise the Bevill Determination for CCR generated by non

- utilities”. Wisconsin has several papermill waste
landfills and some of other industries that co

- dispose of coal or mixed

- fuel wastes with papermill sludge, yard waste, bark, process rejects such as knots, etc. The request involves considerable
effort to collect the information ab out specific generators, waste volumes, characteristics, and other unspecified information.

Since EPA has already decided that the proposed rules will not apply to non

- utility CCR disposal, we do not see the value of assembling this information for comme nt on this rule. However, this is an important issue for non

- MSW landfill regulation in Wisconsin, and we request that EPA solicit our help and information regarding this issue when they return to the question of regulation of coal ash and/or other wastes generated by the non

- MSW, non

- utility generators.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06815

- 12 

### 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: CCR are generated at a number of non

- public utility sources in Michigan, including industrial sources such as paper mills, sugar beet processors, and various manufacturing plants, as well as power plants at universities. In some instances these CCR are disposed of in either municipal solid waste landfills or industrial landfills permitte d and licensed under the provisions of Part
115.

Approximately 135,000 tons per year of CCR are generated by non

- utility industries and sent to Michigan landfills each year. Of this amount, approximately 28,000 tons are co

- disposed in
industrial waste lan dfills utilized by pulp and paper mills, and the remainder is disposed of in municipal solid waste landfills.

Response: The Agency acknowledges and appreciates the comment.536



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06880

- 1 

### 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: 4.1.1 10.4.3 

### Comment Excerpt Text: Eastman is not an electric utility or independent power producer and would not be subject to this proposed rule. Eastman generates coal combustion residuals (CCR) marketed for beneficial use that are already suffering stigma resulting from the mere proposal that management under RCRA
Subtitle C would be required for CCR. Eastman also disposes of CCR in a landfill that is subject to, since 1984 has been permitted under, and is in compliance with, Tennessee Rules for Solid Waste Processing and Disposal (Rule Chapter 1200

- 1

- 7). Eastman strongly su pports regulation of CCR under the proposed Subtitle D option. Additional details as well as comments in response to EPA's requests in the proposed rule are provided in the enclosure.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06880

- 2 

### 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 : 10.4.3 

### Comment Excerpt Text: Eastman is not an electric utility or independent power producer and would not be subject to the requirements of this rule. Eastman operates coal

- fired, stoker

- fed solid fuel boilers that produce
cinders. These cinders are s uitable for use by the building material manufacturing industry in the manufacture of cinder blocks. Eastman has had a purchase agreement in place for more than thirty (30) years with a regional building material manufacturer for the purchase of our boiler cinders for use in making cinder blocks. Effective November 16, 2010, this building material manufacturer has terminated its purchase agreement for Eastman's cinders. The causes given by this former Eastman business partner for terminating the agreement i ncluded the manufacturer's concern for the marketability of its products when its feed stock is merely proposed to be subject to RCRA hazardous waste regulations and the costs that are reasonably expected to result from defending against lawsuits, whether substantiated or frivolous, that would be brought in the wake of such regulation. The cost to Eastman in lost income, increased transportation to haul cinders to the landfill rather than having them hauled by the purchaser, and consumed landfill capacity,537

of this beneficial use of approximately 25,000 tons of its boiler cinders will potentially reach a half million dollars per year.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07489

- 11 

### Organization 1 

### : Council of Industrial Boiler Owners (CIBO) 

### Commenter 1 : Robert D. Bessette Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

C. A hazardous clas sification is contrary to national energy and conservation goals.

Many institutional and industrial facilities utilize cogeneration (also referred to as combined heat and power or “CHP”) which is one of the most efficient ways to use coal. Electricity gen erated at a CHP facility is generated at twice the efficiency of a traditional condensing turbine utility plant. As a result, CHP is the most efficient use of energy resources, capable of thermal
efficiencies in excess of 60% versus the 30

- 40% more typical ly found in electrical generating units (EGU). EPA includes utility

- sector and IPP CHP facilities for the same regulatory
treatment and with the same time frames as non

- CHP facilities. [Footnote 26: 75 FR 35165

- 36166.] Subtitle C listing will increase risk s and discourage CHP development. Coal will necessarily remain part of the nation's fuel portfolio for the foreseeable future. As a result, efficient use of coal should not be discouraged. Congress adopted RCRA to establish nationwide practices for resourc e conservation and recovery of value from those resources. Congress directs the federal government in every

energy

- related law to conserve energy and exploit alternative energy sources. EPA and industry have worked together to develop environmentally safe beneficial use options for CCBs. Subtitle C listing will end those efforts and the recovery of the energy value in CCBs

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07489

- 17 

### Organization 1 

### : Council of Industrial Boiler Owners (CIBO) 

### Commenter 1 : Robert D. Bessette Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 9.3.11538



### Comment Excerpt Text: (4) Permitted Emissions from Vents: Because no pollution control device can approach a theoretical 100% effectiveness, all utility and industrial boilers have permitted emissions from
their stacks and other vents. For a 500 MW coal

- fired subcritical boiler burning easte rn bituminous coal, a 99.99% efficient Fabric Filter would allow over 28,000 pounds of CCBs to be emitted out its Title V permitted stack (assumes 9,000 Btu/kwh heat rate; 12,500 Btu/lb coal with 10% ash; 90% capacity factor). This does not meet the “low

- v olume” requirement of §261.4(c), yet represents a virtually uncontrollable release to the environment of RCRA hazardous material. Further, for a CCB sample collected in the environment, it would be impossible to distinguish between CCB generated from an EG U versus CCB generated by an industrial boiler not subject to this rule. EPA has failed to consider how institutional and industrial facilities will respond to the potential liability introduced under this scenario in its RIA

Response: The Agency acknowl edges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07489

- 28 

### Organization 1 

### : Council of Industrial Boiler Owners (CIBO) 

### Commenter 1 : Robert D. Bessette Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: A. Although EPA states that the rule applies only to utilities and IPPs, the institutional and industrial sectors will be directly or indirectly regulated under the rule as proposed.

The proposed rule expressly regulates CCBs from the utility sector, which overwhelmingly produces the largest annual proportion of CCBs. Although EPA states that the Proposal does not regulate sectors other than electric utilities and independent power produce rs, in fact, the rule will directly or indirectly regulate ash produced by coal

- fired facilities in the institutional and industrial sectors. This is due to how the Proposal defines some terms and its applicability, and also due to the overlapping effect o f other laws.

As drafted, the proposed Subtitle D rule will regulate CCRs from non

- utility facilities. The proposed Subtitle D provisions do not restrict applicability of the rule to utility and IPP CCB producers. Rather, the provisions cover "owners or operators of CCR landfills and CCR surface impoundments." Proposed §257.40, 75 FR 35240. The applicability of those terms is not restricted to utilities and IPPs. The proposed Subtitle D definition of “coal combustion residuals” covers all ash, regardless of the type of facility combusting coal: Coal Combustion Residuals (CCRs) means fly ash, bottom ash, boiler slag, and flue gas desulfurization materials. CCRs are also known as coal combustion wastes (CCWs) and fossil fuel combustion (FFC) wastes. Proposed § 257.40 (b); 75 FR 35240. In addition, proposed Subpart D provisions define the539

scope and purpose of the regulation to include all CCR landfills and impoundments. See, e.g., proposed §257.40(a); 75 FR 35240 (defining applicability of disposal standards t o CCR landfills and impoundments generally); §257.2; 75 FR 35239 (defining “CCR landfill” and “CCR surface impoundment” without reference to the sector origin of CCRs accepted at the site). These provisions do not exclude facilities that manage CCRs produc ed by non

- utility sources.

Proposed Subtitle C and D rules will result in equivalent treatment for all CCRs by states. Any proposal to manage utility CCB will result in states regulation all sources of CCB for the simple reason that states that presentl y regulate CCBs regulate them from all coal combustion sources, not only from utility sources. It would be impractical and states are not likely to create separate regulatory pathways and require segregated accounting for utility and
industrial/institution al CCBs. This would double their administrative burden with no environmental benefit. Institutional and industrial producers of CCBs would now likely become large quantity generators of hazardous waste and be burdened with many additional regulatory requir ements and costs with essentially no environmental benefits produced

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 52 

### 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 collects volume and other information from the other non

- utility CCR generat ors in Maryland. This information is provided on our website at http://www.mde.state.md.us/programs/Land/SolidWaste/CoalCombustionByproducts /Pages/Programs/LandPrograms/Solid_Waste/ccbs/index.aspx . Most dispose of the material with their municipal solid waste, although one generator uses the material for coal mine reclamation.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08244

- 21 

### Organization 1 

### : Edison Mission Energy, LLC 

### Commenter 1 : Basil G. Constantelos Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:540



### Comment Excerpt Text:
3. EPA’s Decision To Treat EGU

- Generated CCRs Differently From Industrial CCRs Is
Arbit rary And Demonstrates That Its Risk Concerns Are Overstated In EPA’s draft 1998 CCR risk assessment, the Agency considered the CCRs produced by coal

fired non

- utility boilers to be so similar to CCRs from utility boilers that the same samples and modeling data were used to evaluate the risk from industrial CCRs as were used to assess utility CCRs. This is sensible as industrial boilers are generally the same as utility boilers, only smaller. In 1998, EPA found similar low level risks for CCRs from non

- utili ty boilers as for utility plants, particularly with respect to arsenic [Footnote 200: EPA, Ground

- Water Pathway Human Health Risk Assessment, Sec. 5.5.4 (1998) (Revised Draft Final).]. Based on this prior assessment, it is surprising that EPA asserts in th e Proposed Rule that it can ignore non

- utility wastes under Subtitle C, even if it decides to subject utility CCRs to such requirements. This decision is arbitrary because, as EPA determined in 1998, the CCRs produced in a coal

- fired industrial
boiler are substantially similar to those produced in a utility boiler for waste management purposes. In fact, the primary difference between utility and industrial coal

- fired boilers is that industrial boilers typically operate at lower combustion temperatures, and as a result more of the metals in the coal being burned remains in the fly ash. If anything, this difference confirms that EPA erred in not including industrial boilers within scope of the Proposed Rule. The only justifications offered by EPA for these dis tinctions are the fact that industrial boiler CCRs are generated in lower volumes and are more likely to be comingled with other types of wastes [Footnote 201: 75 Fed. Reg. at 35,166.]. Neither of these justifications are determinative. If CCRs were truly hazardous enough to require listing under Subtitle C, then non

- utility boiler wastes would pose substantially the same risks from a hazardous waste perspective as utility CCRs. Moreover, depending on the nature of the wastes that industrial CCRs are coming led with, the disposal of those combined wastes could actually increase leaching relative to monofill utility wastes; for example, if the non

- CCR industrial waste reduced pH in the disposal site. EPA’s failure to include non

- utility CCRs in its proposal va lidates what is implicit elsewhere in
the record

– that the Agency’s concerns about utility

- generated CCRs are not driven by their potential hazard, but some other factor that is not directly relevant to the core differentiation
between a Subtitle C and Su btitle D approach (i.e., whether a waste is hazardous).

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08253

- 6 

### Organization 1 

### : Xcel Energy 

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



### Comment Excerpt Text: 6 CCR's Generated by Non

- Utility Industries: We have no specific information on this issue, however one unintended consequence of541

regulating CCRs from utilities as a RCRA C "Special Waste" is that local governmental authorities may elect to regulate all CCRs, regardless of the source, in this manner for consistency. We also believe that the stigma concern associated w ith electric utility CCR's would have a similar adverse impact on beneficial use of non

- utility CCRs.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08269

- 3 

### Organization 1 

### : Horsehead Corportion 

### Comme nter 1 : Patrick T. Currier Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.1.1 

### Comment Excerpt Text:

A. HORSEHEAD CORPORATION

.

Horsehead, a wholly owned subsidiary of Horsehead Holding Corp., is the world’s largest recycler of zinc and the largest producer of zinc products including Prime Western grade zinc metal ( i.e. , 98.5% Zn) and high purity zinc oxide in the U.S. Horsehead is also the world’s leading recycler of electric arc furnace dust (“EAFD”), a zinc

- bearing by

- product generated by
U.S. mini

- mill steel producers that is regulated pursuant to the Resource Conservation and Recovery Act (“RCRA”). Horsehead converts EAFD into useable products by extrac ting the contained zinc to produce a crude zinc oxide for use as a feed source for our zinc products business. Horsehead’s recycling efforts lessen the need for virgin zinc, thus promoting resource conservation and sustainability.

Horsehead’s recycling c apability provides steel producers an effective and efficient alternative to hazardous waste landfill disposal and other expensive, less environmentally

- friendly disposal methods. This is an important environmental service, particularly given that hazardou s waste landfill capacity is limited.4 Indeed, to date Horsehead has recycled over 6.5 million tons of hazardous EAFD that otherwise would have taken up valuable landfill space.

Moreover, Horsehead serves its end markets including galvanizers, tire produ cers and pharmaceutical manufacturers with zinc products produced from 100% recycled materials, thus further promoting the principles of sustainable development. Horsehead’s commercially

- proven high temperature metals recovery process has been designated b y EPA as a “Best Demonstrated Available Technology” for the processing of EAFD.

B. HORSEHEAD’S MONACA FACILITY AND POWER PLANT

.

Horsehead’s Monaca facility operates as the country’s largest zinc smelter. Located 28 miles northwest of Pittsburgh, Pennsy lvania, this electrothermic zinc smelter is the result of a company experiment conducted in the 1920s to produce zinc oxide. Since that time, the Beaver County542

operation has been expanded and modernized. Recognized as the world’s largest user of recycled

z inc

- bearing materials in its manufacturing process, Horsehead’s Monaca plant produces primarily zinc metal and zinc oxide. The facility employs approximately 650 people.

Horsehead generates substantially all of its electricity requirements for its Monaca facility from the George F. Weaton station, an on

- site 110

- megawatt power plant, which it owns and operates. Specifically, Horsehead operates two pulverized coal

- fired 600 MMBtu/hr boilers at the Monaca facility. The boilers provide electricity to power s even electrothermic furnaces, with each using approximately 8.5 megawatts of electric power. Each boiler serves one generator with a nameplate capacity of 60 megawatts. However, like many similarly

- situated manufacturing
facilities with on

- site generation, the electricity that Horsehead generates is mainly for its own use, but any excess may be sold in the wholesale market.

As described in greater detail below, the Industrial Residuals generated by the Weaton Plant are
maintained in strict accordance with the Pennsylvania Department of Environmental Protection’s Residual Waste Program.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08270

- 1 

### Organization 1 

### : Cliffs Natural Resources Inc. (Cliffs) 

### Commenter 1 : David Z. Skolasinski Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.3.2 3.1.2 7.3.1 7.1.1.2 5.5.1 5.5.2 

### Comment Excerpt Text: The Impact To Non

- Utilities Of A Subtitle C Determination Of CCRs

The SBP power plant is not a part of the Electrical Power Sector (Electric Utilities and Independent Power Producers) as defined in 75 Fed. Reg. at 35,130 because its primary business
is t o provide electricity and heat for the ore mining and processing operations as opposed to the sale of electrical power and heat to the public. Therefore, CCRs produced at this plant are not subject to the proposed Rule. However, because of the precedent th at will be set by this rulemaking and the possibility that EPA may proceed with rulemaking to address CCRs from N

on

- Electric Power Sector power plants at some future date, Cliffs is very interested in EPA's CCR waste determination in this rulemaking.

Ex cept for a portion of the CCRs that are sold for beneficial use, all of the remaining CCRs that are produced at SBP are disposed in an engineered landfill, the design of which includes an impermeable synthetic liner beneath the CCR pile, an impermeable syn thetic cap over each filled landfill cell, a leachate collection system to remove stOlmwater that accumulates from within the CCR pile on top of the liner, and monitoring wells to monitor the integrity of the landfill. The landfill was designed in conforma nce with Minnesota solid waste regulations. The Minnesota Pollution Control Agency approved the design of the landfill and issued a solid waste disposal543

system permit for the landfill that includes monitoring and repOliing requirements among other
conditio ns. There are other landfills in the state that are similarly designed, permitted, and operated by public utilities. Should EPA decide to regulate CCRs as Subtitle C hazardous wastes, this would result in a significantly increased pennitting effOli for suc h landfills, along with significantly increased costs of construction, operation, monitoring, and reporting. This would result in a much greater burden to the state permitting agency, as well as to the owner and operator of the landfill with no environment al benefit being derived.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09423

- 1 

### Organization 1 

### : American Forest and Paper Association (AF&PA) 

### Commenter 1 : Paul Noe Commenter Type: Trade Associatio n Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Although AF&PA members are not directly regulated by this rulemaking, EPA indicates in the preamble that consideration of coal combustion r esiduals (CCRs) from other entities will likely follow decisions made regarding such residuals from electric utilities. According to the Energy Information Administration, the pulp and paper industry uses approximately one percent of the
coal burned in the United States to generate electricity and steam. Virtually all of our facilities that generate electricity do so using highly

- efficient combined heat and power technology. As a result, we are greatly interested in the rulemaking that EPA is undertaking co ncerning the regulatory scheme for CCRs from electric utilities.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09423

- 2 

### Organization 1 

### : American Forest and Paper Association (AF&PA) 

### Commenter 1 : Paul Noe Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.3.2 

### Comment Excerpt Text: EPA Correctly Excluded Pulp and Paper Mill Coal Combustion Residuals from this Rulemaking

AF&PA supports EPA’s decision not to include coal combu stion residuals from the manufacturing sector in this rulemaking. The pulp and paper industry’s management of coal ash
differs somewhat from that of the electric utilities

– which uses 95 percent of all coal in the U.S.544

Therefore, we think that it makes se nse to review our operations before regulating them.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09423

- 3 

### Organization 1 

### : American Forest and Paper Association (AF&PA) 

### Commenter 1 : Paul Noe Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: At our request, the National Council for Air and Stream Improvement (NCASI), the independent,

non

- profit re search institute that focuses on environmental topics of interest to the forest products industry, conducted an informal survey of most of the pulp and paper mills known to be the largest users of coal in the sector. Their findings confirm several importan t facts about coal use and ash generation in this industry.

o Pulp and Paper Mills manage coal combustion residuals differently than the electric utility

sector.

- Most of the mills burn a wide variety of fuels in addition to coal. As a result, those mill s co

manage coal ash with ash generated from other fuels, particularly biomass.

- Of the 27 mills surveyed, only four mills handle their coal ash separately from other ash.

o Pulp and Paper Mill CCR management units differ from those in the electric utili ty sector

- No mill employs any surface impoundment for permanent storage of ash in wet form.

- Of the 15 mills with wet ash ponds used for temporary storage, nine are known to have ponds that are “at grade” (an excavation only) and six have true impoundme nts in that one of more sides are aboveground because of a constructed earthen retaining wall.

o Pulp and Paper Mill CCR management units are significantly smaller than those in the utility

sector.

- The largest units are 23 to 60 acres in size and hold f rom 15 to 40 million gallons of wet ash.

- Only one of the impoundments is used solely for coal combustion byproducts.

- In contrast, utility management units are as large as 650 acres, holding hundreds of millions of gallons of wet ash.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10681_DC

- 069

- 1 

### Organization 1 

### : American Forest & Paper Association (AF&PA)545



### Commenter 1 : Amy E. Schaffer Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.3.2 

### Comment Excerpt Text: The forest products industry accounts for approximately 5 percent of the total U.S. manufacturing GOP, putting it on par with the automotive and chemical industries. Industry companies produce $200 billion in products annually and employ approximately 900,000 people earning $54 billion in annual payroll. The industry is among the top 10 manufacturing sector employers in 48 states.

According to the Energy Information Administration, the pulp and paper industry uses about 1 percent of the coal burned in the United States. We use coal to generate electricity and steam. Virtually all our facilities that generate electricity do so using highly

- efficient combined heat and power technology. We are the largest user of coal after the electric utility sector. As a result, we are greatly interested in the rulemaking that EPA is undertaking concerning the regulatory scheme for coal combustion byproducts.

AF&PA supports EPA's decision not to include coal combustion byproducts from the manufacturing sector in this rulemaking. We believe that our management of coal ash differs somewhat from that of the electric utilities. Pulp and paper mills use a wide variety of fuels

-- in addition to coal. As a result, our mills frequently co

- manage coal ash with ash generated from other fuels, particularly biomass. We believe that our ash management units are significantly smaller than those in the utility sector. Therefore, w e think that it makes sense to review our operations before regulating them.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11652_K

- 067

- 1 

### Organization 1 

### : Tennessee Paper Council (TPC) and American Fo rest & Paper Association (AF&PA) 

### Commenter 1 : Richard Holland Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Good morning. My name is Richard Holland. I represent the Tennessee Paper Council and the American Forest & Paper Association. The TPC and AF&PA are trade associations of the forest products industry, representing pulp, paper, packaging and wood products manufacturers, and
forest landowners. Our com panies make products essential for everyday life from renewable and recyclable resources.546

According to the Energy Information Administration, the pulp and paper industry uses about 1 percent of the coal burned in the United States. We use coal to generate electricity and steam. Virtually all our facilities that generate electricity do so using highly

- efficient combined heat and power technology. We are the largest user of coal after the electric utility sector. As a result, we are greatly interested in the rulemaking that EPA is undertaking concerning the regulatory scheme for coal combustion byproducts.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- CHI

- 0018

- 4 

### Organization 1 

### : ALCOA Power Generating, Inc. 

### Commenter 1 : Scott Darling Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: As stated in the proposed rule, the electric utilities are covered by this rule. ALCOA requests that EPA clarify the distinction between industrial and utility, perhaps looking at definitions
contained within the acid rain section of the Clean Air Act.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- PIT

- 0025

- 1 

### Organization 1 

### : Alcoa 

### Commenter 1 : Tony Schoedel Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.2 

### Comment Excerpt Text: One, Alcoa believes that th e use of Subtitle C is an approach to regulate CCR's higher than warranted. The use of modified TCLP to model and justify the destination of CCR's are hazardous, we believe misuses that test method as it does not accurately model the actual
releases from m any aspects, most specially developers out in the midwest. As ours when it comes in contact with water becomes alkaline not acidic. The test data from our fly ash surface impoundments both open and closed indicate that our ash is nonhazardous. The material has exhibited that for the last 20 years, if not more. The data we derived from our groundwater547

testing as part of our Electro Facility Investigation and the RFI, public knowledge, our fly ash shows no detection of any chemicals of concern in the groundwa ter. Alcoa believes that the EPA has exhaustedly researched the toxicity of CCRs in the past, and has at least once affirmed the exclusion, under the Bevill Exclusion from the management of hazardous waste, and we encourage you to continue that designatio n. As such, we really see no technical scientific basis for changing that designation now.

Response: The Agency acknowledges and appreciates the comment.

Section 2.3.2

- Comments on whether EPA should revise Bevill regulatory determination
for CCRs generated by non

- electric utilities, including support or oppose Total Number of Submissions: 30 Total Number of Comments: 33



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 00358

- 14 

### Organization 1 

### : Citizens for Clean Power (CCP) 

### Commenter 1 : John Austin Commenter Ty pe: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
261.4 Exclusions

Sentence (ii) should be stricken.

(ii) Fly ash, bottom ash, boiler slag, and flue gas emission control wastes generated

primarily from the combustion of coal for the purpose of generating electricity by facilities outside of the electric power sector (i.e., not included in NAICS code 221112).

EPA should not exclude facilities outside the electric power se ctor. Wastes at small <25MW generation units at industrial power house operations like Invista, Seaford, Delaware have been mismanaged in the same way as larger EGU operations. The wastes are chemically the same and should be managed under the same regulat ions. As proposed it would set up different standards for identical wastes based solely on the point of origin or volume produced.

An example of significant contamination at a combined

- heat

- and

- power (CHP) site is:

Invista, Seaford, DE

– Unlined landfill and two surface impoundments

- Stream station SG

- 4 shows 14.9 ug/L south of landfill; Well MW

- 14D adjacent the unlined South Ash Pond, 2170 ug/L As

http://www.docstoc.com/d ocs/598194/Invista

- Seaford

- Plant

- DuPont/548

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 00465

- 4 

### Organization 1 

### : Watauga Watershed Alliance 

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



### Comment Excerpt Text: Furthermore, both proposals decline to regulate the 3 to 6 million tons of coal ash generated annually by non

- utilities.

Response: The Age ncy acknowledges and appreciates the comment. The commenter is referred to Unit VI of the preamble for a discussion on what industries are affected by this rule and why.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 05751

- 1 

### Organization 1 

### : Savannah River Nuclear Solutions, LLC (SRNS) 

### Commenter 1 : Hal W. Morris Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.7 

### Comment Excerpt Text:

Comment Number l is on a statement in the Supplementary Information, section A, on page 35129 of the June 21, 2010 Federal Register that says "CCRs from non

- utility boilers burning coal are not included within today's proposed rule ." The language for the proposed subtitle C section 261 .50 (b)(4) says "[This listing does not apply to coal combustion residuals that are:] Generated by facilities outside the electric power sector (i .e ., not included in NAICS code 22112) ." Similar language is not in the wording of the proposed subpart D section 257 .40 (a) Applicability, or in any other sections of the proposed subpart D. If the subtitle D option proposed in the June 21, 2010 Federal Register is enacted with the language in the proposed rule,
CCRs from non

- utility boilers burning coal will be include d, contrary to the stated position of the Environmental Protection Agency (EPA) in the preamble . Mr. Alexander Livnat, EPA Office of Resource Conservation and Recovery, was contacted by phone on June 22, 2010 to discuss this point. Mr. Livnat confirmed th at the EPA did intend to exclude CCRs from non

- utility boilers burning coal from regulation at this time from both the subtitle C and the subtitle D proposed rules. SRNS respectfully requests that the EPA revise the language of the proposed section
257.40 to reflect the wording in the proposed section 261 .50 (b)(4) in order to clearly exclude
CCRs from non

- utility boilers burning coal from regulation.549

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Unit VI of the preamble for a discussion on what industries are affected by this rule and why.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 05768

- 2 

### Organization 1 

### : Commenter 1 : Richard C. Phelps Commenter Type: Private Citizen
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Applicability of the Proposal to Reclassify CCR:

EPA must include ALL CCR generators above a de minimus amount in this regulation. Both

power

- producers and other industrial coal

- burning sources must be included. There are a great many large industrial sources including the steel and chemical industries. These must be included in the revised regulation of CCR. Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit VI of the preamble for a discussion on what industries are affected by this rule and why.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06040

- 5 

### Organization 1 

### : Longview Power , LLC 

### Commenter 1 : Joseph R. Douglass Commenter Type: Electric Utility Facility
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: EPA has proposed not to revise the Bevill exclusion for CCR's generated at facilities that are not part of the electric power sector and which use coal as the fuel in non

- utility boilers, such as manufacturing facilities, universities, and hospitals. EPA e stimates (page 35166) that these facilities generate approximately 3 million tons of CCR/year. If indeed CCR's present environmental hazards sufficient to warrant this rulemaking, we must question the proposal to regulate CCR's differently depending upon t he nature of business conducted by the generator. How could EPA possibly justify imposition of a one (1) pound reportable quantity for regulated generators under Part 302.4, while disregarding 3 million tons from non

- regulated generators? If
additional rul es are required for CCR's, these rules should encompass CCR's from all generators, particullarly if they are deemed "hazardous".550

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit VI of the preamble for a di scussion on what industries are affected by this rule and why.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06041

- 6 

### Organization 1 

### : SKB Environmental, Inc (SKB) 

### Commenter 1 : Ryan O'Gara Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Additionally, the proposed regulation does not address non

- utility coal combustion byproducts. While this exclusion would allow SKB to continue to service the disposal needs of its non

- ut ility customers that use coal as fuel, this would cause perception issues with the public, local units of government, and neighbors of our Facility. SKB would be forced to explain why it can take the same waste types for disposal from universities and othe r non

- utility customers, but the same exact waste streams from a utility are hazardous waste and not acceptable for disposal at our Facility because it is not permitted as a Subtitle C facility . This could have the unintended consequence of prompting the local unit of government to list all CCBs as unacceptable waste in our Facility's conditional use permit (CUP), thereby making it unreasonably difficult for non

utility CCB generators in Minnesota to access an appropriate disposal facility.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit VI of the preamble for a discussion on what industries are affected by this rule and why.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06314

- 7 

### Organization 1 

### : Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell Boulding, Boulding Soil

- Water Consulting, and submitted by Earthjustice) 

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



### Comment Excerpt Text: Industrial CCR is Also Dangerous and Should be Regulated Under Subtitle C.

EPA states in its 1999 Report to Congress:

Analytical data to broadly characterize non

- utility combustion wastes are not available. E PA,551

however, believes that non

- utility CCW characteristics are similar to those of utility CCWs. The greater use of stoker technology in the non

- utility sector does raise the possibility of differences in waste characteristics. Such differences might stem from differences in combustion conditions and fuel feed characteristics between stokers and the PC boilers used extensively by
utilities. The available data, however, do not indicate that these differences are significant for the purpose of evaluating risk to human health and the environment . (USEPA, 1999).

Earlier assessments by EPA of the potential harm from CCR disposal was hampered by the failure of older leach test methods to characterize the contamination potential of CCRs, and the
lack of documented damage cases. The limited leach test data that is available for industrial CCR, and the known inadequacies of the older test methods means that such should not be used to justify exempting industrial CCR from regulation.

Although EPA cites several of it s damage cases as involving industrial CCR (Salem Acres and Lemberger landfills) a close examination of available information about them shows that they involved disposal of CCR from power plants. However, two of EIP’s damage cases involved
industrial CCR and both document the toxicity of industrial CCR and support regulating CRR
from industrial boilers under Subtitle C.

· IEL Landfill, Uniontown Ohio, received about one million tons of ash from industrial boilers in
the Akron/Canton area that filled about one

- third of the landfill. The IEL landfill stands out as having the largest number of MCL exceedances of any of the 150 EPA and EIP damage cases, with MCLs exceeded for alpha particles, antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercu ry, and thallium (Appendix VIII metals bold

- faced).

· Grays Siding Structural Fill, Illinois. Disposal of more than 380,000 tons of coal combustion waste from the Bunge Corporation’s coal plant adjacent to the rural Grays Siding neighborhood (also called Rocky Acres) in Oakville, Illinois may have contaminated two private drinking water wells with levels of lead, iron and manganese above Illinois Department of Environmental Protection groundwater standards. Recent groundwater sampling at the site identifie d arsenic, barium, chromium, lead, nickel, iron, and manganese at levels that exceeded groundwater quality standards, with arsenic, barium, chromium, and lead also exceeding federal primary MCLs.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit VI of the preamble for a discussion on what industries are affected by this rule and why.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 23 

### 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: 4.7 9.7.2 12.1.1.1552



### Comment Excerpt Text: In the preamble to the Proposed Rule, EPA clearly states that the Proposed Rule only applies to CCR generated by electricity or combined heat and power plants whose primary business is to sell electricity or electricity and heat to the public (i.e. NAICS Code 221112 plants). EPA also
states th at placement of CCR in minefills is not being addressed in the Proposed Rule, and that the United States Department of Interior (“DOI”) and EPA will address the management of CCR in minefills in a separate regulatory action. Moreover, even under the Subtit le C option, EPA has acknowledged that the Proposed Rule should not apply to beneficially used CCR that is placed in mine filling operations, generated by facilities outside the electric power sector (i.e. not included in the NAICS Code 221112), or activit ies associated with cleanups authorized by state or federal agencies.

As currently proposed in 40 C.F.R. § 257.40, however, Duke Energy believes that all CCR would arguably be subject to the rule. EPA must revise the proposed regulatory applicability lang uage in 40 C.F.R. § 257.40(a) to clearly state that the rule only applies to electricity generators that are managing CCR and whose primary business is to sell electricity or electricity and heat to the public (i.e. NAICS Code 221112 plants) as EPA intende d. Left unchanged, the regulatory language would subject entities outside of the electric sector to the rule’s requirements, including many small businesses, which would be inconsistent with EPA’s determination that small business review was not required.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit VI of the preamble for a discussion on what industries are affected by this rule and why.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06409

- 11 

### Organization 1 

### : State of Alaska 

### Commenter 1 : Kristin J. Ryan Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 7.3.1 

### Comment Excerpt Text: 1. A primary concern the ADEC has with the proposed Subtitle C regulation is that it classifies CCRs based on the source and intended destination of the waste rather than any inherent characteristic of the waste. The impact of this is magnified in Alaska because only two of the six
coal

- fired powe r plants in Alaska will be subject to the proposed regulation. Although all the coal burned in Alaska comes from the same source, under the Subtitle C option, 55% of Alaska's
CCRs will be non

- hazardous waste when disposed and 45% will be hazardous waste wh en disposed, a distinction determined solely by which power plant generates the CCRs. Such a distinction is nothing short of arbitrary and ignores all existing analytical data that documents that CCRs generated from Alaskan coal, regardless of where they a re generated, do not exhibit the characteristic of toxicity and are not a hazardous waste. Such an arbitrary distinction hardly553

meets the EPA's guiding principal that the decision on how to regulate CCRs must be based on
sound science

Response: The Agenc y acknowledges and appreciates the comment. The commenter is referred to Unit VI of the preamble for a discussion on what industries are affected by this rule and why.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06535

- 3 

### Organization 1 

### : NC Conservation Network 

### Commenter 1 : Peter Walz Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 12.1.1.6 

### Comment Excerpt Text: In addition, it is critical that the EPA strengthen the rule to address so called "beneficial uses," "mine filling," and the needed regulation of the millions of tons of coal ash generated annually by non

- utilities. We need strong safeguards that guarantee coal ash will not contaminate our drinking water, our rivers , our streams, our wildlife and our communities.

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

- 06827

- 1 

### Organization 1 

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

### Commenter 1 : Kenneth E. Raymond Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Ass igned/Due:
Other Sections: 2.1.6 

### Comment Excerpt Text: 1. The Proposed Rule Arbitrarily Regulates the Electric Power Sector While Excluding Other Industries That Generate and Dispose of CCRs Under the Subtitle C option, CCRs that are generated and disposed in landfills or surface impoundments by electric utilities and independent power producers would be regulated as a listed hazardous waste (i.e. so

- called "SOOI" waste). As such, CCRs and the landfills or surface impoundments in which they are disp osed would be subject to hazardous waste regulation. Conversely, CCRs that are generated and disposed by other industry sectors would not be subj ect to regulation under the proposed rule pursuant to 40 CFR 261.4(b)(4)(ii) and 40 CFR 261.50(b)(4).554

Under t he Subtitle D option, CCRs that are generated and disposed in landfills or surface impoundments by electric utilities and independent power producers would be regulated as a

non

- hazardous solid waste. As such, any landfill or surface impoundment in which C CRs are disposed would be subj ect to certain minimum national design and operational standards for those types of disposal units. Conversely, it appears that CCRs that are generated and disposed by industries outside the electric power sector would not be subject to regulation under the proposed rule, although there is no explicit language to that effect in the proposed rule itself at 40 CFR 257.40(a). Instead, OG&E is relying on the language in the summary section of the proposed rule in which the Agency states that it is proposing to regulate CCRs to address the risks from the disposal of CCRs generated from the combustion of coal at electric utilities and independent power producers. Unlike earlier rulemaking efforts under Subtitle C in which the Agency promulgated rules to regulate certain listed hazardous wastes from non

- specific sources without regard to the industries that generated them, in these proposed rules, the Agency has somehow determined that CCRs generated by electric utilities and independe nt power producers pose a greater threat to human health and the environment than those generated by other industries. This is a radical departure from the Agency's historical approach in regulating listed hazardous wastes in that, until now, it did not ma tter which industry generated the wastes; if it met the listing criteria, the wastes were regulated. Similarly, it did not matter which industry disposed of non

- hazardous solid wastes in landfills; if such wastes were disposed of in this manner, the landfi lls were regulated pursuant to 40 CFR Part 257, regardless of who owned or operated them. Thus, it appears that the Agency has elected not to include other industries that utilize coal as a fuel source from which CCRs are generated and disposed. If CCRs po se a threat to human health and environment as the Agency now asserts, it shouldn't matter which industry generates and disposes of them; if any industries are subject to the proposed rule, then all industries that generate and dispose of CCRs should be su bject to the proposed rule. Nowhere in the proposed rule does the Agency provide a technical explanation why CCRs generated by the electric power sector are different in their physical or chemical composition than those that are generated by other industry sectors such that they warrant regulation. The Agency likewise does not provide any technical explanation why landfills or surface impoundments owned and operated by the electric power sector are designed, constructed and operated differently than those o f other industry sectors such that they warrant regulation. In the absence of any such explanation, the proposed rule is arbitrary and capricious in that its scope is narrowly written to regulate CCRs generated and disposed by the electric power sector
whi le excluding other industry sectors that also generate and dispose of CCRs. In that regard, the Agency should amend the proposed rule by removing any exclusion that unfairly favors other industries that generate and dispose of CCRs, thereby subjecting all industries that generate and dispose of CCRs to any final rule that comes from this rulemaking effort.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit VI of the preamble for a discussion on what industrie s are affected by this rule and why.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06852

- 16 

### Organization 1 

### : Green Delaware555



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



### Comment Excerpt Text: Inadequate scope of proposed the rule.

We are concerned that the proposed Rule may only apply to coal ash generated by electric utilities and independent power producers. These are not the only generators of coal ash . Others, such as large industrial powerhouses and ethanol plants, may be also be problematic sources. Thus, EPA should promptly move to extend the scope of regulation to these and other sources.

Response: The Agency acknowledges and appreciates the comme nt. The commenter is referred to Unit VI of the preamble for a discussion on what industries are affected by this rule and why.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06880

- 9 

### 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: 4.7 4.4.2.1 3.9 

### Comment Excerpt Text: EPA states in the Preamble that it is not proposing to revise the Bevill exclus ion for CCRs generated at facilities that are not part of the electric power sector and which use coal as the fuel
in non

- utility boilers, such as manufacturing facilities, universities, and hospitals (see 75 FR 35165, June 21, 2010, D.IV.F). Under the Sub title C option, the proposed language at §261.50 explicitly limits applicability to facilities included in the North American Industrial Classification System (NAICS) code 221112. However, the definition of CCR landfill and CCR surface impoundment under bo th the Subtitle C and Subtitle D options, as well as the applicability language proposed at §257.40(a), is sufficiently broad and ambiguous to apply the Subtitle D option to CCR waste generated at any facility, regardless of its NAICS code.
In order to cl arify the applicability and assure its intent, EPA should revise the language at §257.40(a) as follows:

"(a) Applicability. (1) The requirements of this subpart apply to owners or operators of CCR landfills and CCR surface impoundments that manage CCR f rom the electric power sector which is defined as electricity

- only and combined

- heat

- and

- power (CHP) plants whose primary business is to sell electricity, or electricity and heat, to the public; i.e . NA1CS code 221112 plant. Any CCR landfill and surfac e impoundment continues to be subject to the requirements in §§ 257.3

- 1, 257.3

- 2, and 257.3

- 3."556

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit VI of the preamble for a discussion on what industries are affected by this rule and why.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06959

- 11 

### 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:



### Comment Excerpt Text: Finally, the coal ash generated from non

- electric producing industries such as soybean processing facilities, cement manufacturers, paper or steel mills is not addressed by the proposed regulations, even though this waste is as toxic as that from electrici ty generation. This waste will
remain under

- regulated and held to much lower standards, presenting another continuing threat to public health that could and should be promptly addressed.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit VI of the preamble for a discussion on what industries are affected by this rule and why.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06959

- 9 

### Organization 1 

### : Prairie Rivers Network, Illinois Chapter of the Sierra Club, American Bo ttom Conservancy 

### Commenter 1 : Traci L. Barkley Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.5.2.2 10.5.1.1 

### Comment Excerpt Text: Limiting the scope of the proposed regulation of coal ash to that produced by electric generating utilities and for coal ash disposed of in landfills and ash impoundments, may increase pressure to: 1) reuse greater volumes of coal in so

- called “beneficial” ways without additional oversight; 2) dispose of increased volumes of coal ash in under

- regulated coal mines; and 3) unfairly exempt coal

- fired production facilities such as grain processors, cement kiln, paper and steel
mils.
The Illinois Environmental Protection Act allows for coal to be "beneficially used" for a variety of purposes including road building, de

- icing, amending agricultural soil and producing construction materials. Our Illinois EPA or Illinois DNR Office of Mines and Minerals may also

a pprove any use not specified in the act so long as the applicant demonstrates to the agency’s557

satisfaction that the project will not harm the environment. However, no formal process or criteria for this approval exists, no monitoring of the placement of th is coal ash is completed and there no record is required of where the coal ash is employed. A fill project in McDonough and Schuyler Counties, just one of thousands, shows the shortcomings of our current system. A recent visit to the Industry Mine facilit y in September 2010 revealed poor onsite practices employed by Springfield Coal Company in their handling of coal ash. The mining operation has received permission to dispose of coal combustion waste in mine voids, but more pertinent to the scope of the pr oposed regulation by USEPA at this time, the facility has received permission to use fly ash as “fill” material for an onsite ravine. The ravine is the depression that collects rainfall from a larger drainage basin, directs the water towards a culvert whic h drains the water into an impoundment of a tributary to Willow Creek. Coal ash was dumped in a large pile that was spilling onto the roadway, into the ravine and was moving downgradient from the dumpsite as far as the eye could see (Pictures in Attachment B). Light winds present on the day of the visit carried clouds of black coal ash into the sky and could be felt in the throat, mouth and eyes of both visitors. There was no evidence of purposeful grading for drainage, berms or other
windbreaks to block wi nd gusts from blowing ash, wetting of roads or coal ash to prevent fugitive dust, or other practices that may be employed to prevent coal ash from moving either by air, gravity or water to an undesirable location. All of the water that rains onto this fly ash drains into the impoundment of the tributary to Willow Creek. This is important as many local residents FISH in this “lake” and CONSUME these fish that likely have building concentrations of heavy metals present in the fly ash, sediments and water that make up the impoundment. Unfortunately, under current Illinois regulations and under both proposals for coal ash regulation by the USEPA, this practice would be allowed to continue with direct threat to fish, wildlife and public health. Obviously, this is a site and community that could benefit from greater oversight and monitoring of the placement of coal ash and represents many more that exist in our state.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Unit VI of the preamble for a discussion on what industries are affected by this rule and why.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07489

- 29 

### Organization 1 

### : Council of Industrial Boiler Owners (CIBO) 

### Commenter 1 : Robert D. Bessette Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Proposed Subtitle C listing will result in liability and use limitations on CCBs produced by non

utility sources.
As disc ussed above, under RCRA, "hazardous waste" is defined based on the constituents and characteristics of the material, not based on the source of a material. Institutional and industrial facilities can generate materials similar in composition to materials g enerated by utilities. Coal ash reflects the composition of the coal fuel, with no distinction in properties of the ash based on the boiler's classification as a utility or industrial boiler. In addition, industrial sources supply or558

dispose of CCBs in the same fashion as utilities, including for a wide range of beneficial uses. Therefore, even if for purposes of CCB disposal, EPA does not regulate institutional/industrial

source produced CCBs, EPA by regulation cannot relieve institutional/industrial produ cers of potential liabilities related to hazardous waste handling and disposal that may arise under other areas of law, including claims that may be brought by third parties based on science

- based definitions of “hazardous” waste. In addition, purchasers o f CCBs generally do not segregate CCBs based on the originating boiler type. Therefore, institutional/industrial

- sector produced CCBs will result in liabilities and use limitations that are equivalent to those imposed on the utility sector.
The docket and EPA’s discussions make clear that distinguishing CCBs based on non

- science based characteristics such as utility or industrial boiler source, or ultimate disposal destination, is undermined by science, based on which no such known distinction can be made. For example, in the Preamble discussion of the risk assessment, EPA describes its interest in data that reflect high concentration levels of constituents of concern. In one of the cited examples, reflecting high lead concentration, the source of the CCBs w as not a utility, but two industrial sources and one university source. [Footnote 32: 75 FR 35146.] In conducting a science

- based risk assessment, EPA necessarily relies on samples from non

- utility sources to assess risks. When EPA later creates legal dist inctions that do not account for the lack of differentiation in the risk assessment,
EPA will have to defend its line

- drawing based on the much weaker rationale of agency policy,
not science.
EPA should revise the rule and Preamble text to reflect its deci sion to regulate CCBs generated only at utility and IPP sources, and not at industrial, institutional or other sources. The final rule should comprehensively define terms and the rule's applicability to expressly exclude CCBs produced by non

- utility source s from both Subtitle C and D rules. However, the industrial, institutional and other sources remain concerned that this approach will result in states regulating
CCBs from non

- utility sources. For that reason, EPA still needs to conduct a comprehensive

eco nomic analysis of the potential impact of the rule on those non

- utility sectors. As drafted, insofar as the rule will result in the regulation of CCBs from non

- utility sources, it is arbitrary and unsupported by the record. EPA has not conducted the most b asic analysis of the

non

- utility sectors, which is a necessary foundation for its regulation. EPA will need to develop a
record focused on the institutional and industrial sectors. Such a record should consider at a minimum, total contribution of the CCB t o be regulated, potential distinguishing features of the CCB that may require different regulatory treatment, regulatory impacts on institutional and industrial sources, CCB management and disposal techniques, beneficial uses, and any existing
distinctions under state law for sources. In addition, EPA will need to consider the additional burdens on institutional and industrial sources, including the limited ability of these sources to pass through compliance costs to customers, direct job impacts, and a dou ble cost burden for industrials as consumers of energy produced by the utility sector which EPA proposes to regulate
in this rule. The record would also need to address science and risk issues, including analysis of the constituents of the ash produced by non

- utility boilers, the lower volume production and the wide range of beneficial uses. As discussed in relation to the impact of the rule on beneficial uses, industrial boilers very commonly combust combinations of fuels, which could affect ash constituen ts, potential for beneficial uses, environmental and health risks, and multiple other factors not considered in this rulemaking. As drafted, the proposed Subtitle C and D regulations will regulate

-- directly or559

indirectly

-- CCBs from institutional and in dustrial sources. Because the rule lacks any record support for that regulatory effect, it is illegal and its effect is arbitrary

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit VI of the preamble for a di scussion on what industries are affected by this rule and why.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07534

- 20 

### Organization 1 

### : Aquaterra Environmental Solutions, Inc. 

### Commenter 1 : Scott Waltrip Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Nothing in the proposed Subtitle D rule indicates that it is only applicable to the electric power sector as in the Subtitle C proposal. Please clarify whether or not th is is intentional, and if it is, explain the rationale behind the decision.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit VI of the preamble for a discussion on what industries are affected by this rule and why.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08251

- 23 

### 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:



### Comment Excerpt Text: MassDEP recommends that EPA regulate CCR generated by non

- utilities in the same manner as other CCR generated by utilities. Under the Subtitle D option that MassDEP supports, this material would be regulated as non

- hazardous solid waste, which is entirely appropriate. BUDs
would be available for generators to use for beneficial uses of this material.

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

- 08269

- 4 

### Organization 1 

### : Horsehead Corportion 

### Commenter 1 : Patrick T. Currier560

Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt T ext:
A. THE PREAMBLE CLEARLY STATES THAT INDUSTRIAL RESIDUALS ARE NOT
COVERED BY THIS RULEMAKING

.

The Preamble clearly provides that EPA does not intend to regulate Industrial Residuals under this rulemaking. To be sure, the Preamble opens by expressly emphasizing that the “proposed rule would apply to all coal combustion residuals [] generated by elec tric utilities and independent power producers” but that “CCRs from non

- utility boilers burning coal are not included within today’s proposed rule .”5 Moreover, EPA explains that the “proposed rule may affect the following entities: electric utility facilit ies and independent power producers that fall under the North American Industry Classification System (NAICS) code 221112 . . . .”6 NAICS
code 221112 defines such facilities as those that are “ primarily engaged in operating fossil fuel powered electric pow er generation facilities.”7

Furthermore, Part IV.F of the Preamble details EPA’s rationale to maintain the Bevill exclusion for Industrial Residuals generated by non

- utilities, e.g. , manufacturing facilities, universities, and hospitals. Specifically, the Preamble states that “EPA is not proposing to revise the Bevill exclusion for CCRs generated at facilities that are not part of the electric power sector and which
use coal as the fuel in non

- utility boilers . . . ,” in part because EPA “lacks sufficient information at this time to determine an appropriate course of action for the wastes from these facilities.”8 Importantly, the term “electric power sector” is defined in the Preamble as “that sector of the power generating industry that comprises electrici ty

- only and combined

- heat

- and

- power (CHP) plants whose primary business is to sell electricity, or electricity and heat, to the public .”9 Such a definition clearly excludes those boilers used primarily for industrial purposes

- and the resulting Industrial Residuals

- from the scope of the Proposed Rule.

In explaining its rationale to maintain the Bevill exclusion for Industrial Residuals generated by

non

- utilities, EPA emphasizes that: Industries that primarily burn coal to generate power for their own purposes ( i.e., non

- utilities) . . . are primarily engaged in business activities, such as agriculture, mining, manufacturing, transportation, and education. The electricity that they generate is mainly for their own use, but any excess may be sold in the wholesale market.10

Consequently, in a decision Horsehead wholly supports, EPA chose “not to assess these [non

utility] operations in today’s proposal, and will instead focus on the nearly 98% of CCRs that are generated at electric utilities .”11

B. THE P ROPOSED SUBTITLE DREGULATIONS SHOULD EXPRESSLY EXEMPT
INDUSTRIAL RESIDUALS

.

As the above demonstrates, EPA clearly intended to exempt Industrial Residuals from this561

rulemaking. Indeed, as set forth below, this intent is expressly reflected in the propose d regulatory language of the proposed Subtitle C regulations, which clearly exclude CCRs generated primarily from facilities outside the electric power sector. In contrast, the proposed Subtitle D regulations do not include a similar exception for Industri al Residuals, seeming instead to regulate CCRs without any distinction as to the source. In order to maintain consistency with the intent EPA pronounces in the Preamble and as reflected in the proposed Subtitle C regulations, Horsehead respectfully submits that EPA should revise its proposed Subtitle D regulations to provide an explicit exemption for Industrial Residuals.

The proposed Subtitle C regulations add a new category of wastes that would be subject to regulation under Subtitle C of RCRA. Specific ally, EPA is proposing to list as a special waste, to be regulated under RCRA Subtitle C, CCRs from electric utilities and independent power producers that are subject to disposal in a landfill or surface impoundment.12 However, EPA expressly excludes Indu strial Residuals from the proposed Subtitle C regulations, which provide, in relevant part that:

The following solid wastes are not hazardous wastes: . . . ii) Fly ash, bottom ash, boiler slag, and flue gas emission control wastes g enerated primarily fro m the combustion of coal for the purpose of generating electricity by facilities outside of the electric power sector ( i.e. ,not included in NAICS code 221112).13 An exclusion similar to this one could be added to the proposed Subpart D regulations in order to remedy EPA’s failure to expressly exclude Industrial Residuals from the purview of Subtitle D. For instance, Section 257.1(c) of the existing Subpart D regulations sets forth a list of numerous wastes, materials, operations and practices that are exemp t from the Subpart D criteria that would otherwise apply to solid waste disposal facilities and practices.14 Section 257.1(c) could therefore be amended to add an exception for Industrial Residuals. Language similar to the following would effectuate the ap propriate change: “(13) The criteria do not apply to coal combustion residuals that are generated by facilities outside the electric power sector ( i.e. , not included in NAICS code 22112).”

Such an amendment, or something similar, is necessary to carry o ut the intent EPA has clearly articulated in the Preamble with respect to excluding Industrial Residuals from this rulemaking.

III. PUBLIC POLICY SUPPORTS EPA’S EXCLUSION OF INDUSTRIAL RESIDUALS
FROM EPA’S PROPOSED RULEMAKING

.

As previously noted, Horse head supports EPA’s decision to exclude Industrial Residuals from this rulemaking. Public policy supports such a result as EPA correctly and expressly recognizes throughout its Preamble. Indeed, EPA’s decision is fully justified given the numerous importan t differences between manufacturing facilities and the electric power sector with respect to coal consumption and resulting CCRs. For instance, industrial and manufacturing facilities produce significantly less electricity from coal than electric utilities in the electric power sector, and burn a significantly smaller amount of the coal consumed for electricity generation. As EPA highlights, the Energy Information Administration has determined that industrial and manufacturing facilities produced only 2.7% of the total electricity generated from coal combustion in 2007, and only burned 2.3% of the total coal consumed for electricity generation562

(24 million tons) at 2,967 facilities.15

With respect to the production of CCRs, industrial and manufacturing facil ities generate significantly less CCRs than electric utilities. EPA estimates that industrial and manufacturing facilities generate approximately 3 million tons of CCRs annually, or an average of just over 1,000 tons per facility. In contrast, electric uti lities in the electric power sector generated 136 million tons of CCRs in 2008, or an average of approximately 275,000 tons per facility.16

EPA also recognizes that industrial and manufacturing facilities generate other types of waste, many of which are generated in much larger quantities than CCRs, and thus they are likely to be
mixed or co

- managed together. As a result, the composition of any co

- managed waste might be fundamentally different from the CCRs that are generated by electric utilities. By EPA ’s own admission, the data gathered to support this rulemaking did not include CCR generated from manufacturing facilities.17 Consequently, without a better understanding of the co

- managed waste at such facilities, EPA rightfully defers consideration of th e issue, instead requesting additional information on Industrial Residuals resulting from the combustion of coal at non

utility boilers.18

As the above demonstrates, industrial and manufacturing facilities are distinct from facilities
within the electric power sector, both in practice and as EPA has defined the term “electric power sector” in the Preamble. To be sure, industrial and manufacturing facilities use their boilers to generate electricity mainly for their own use , with some limited excess sold in the wholesale energy market. In contrast, the electric power sector comprises plants whose primary business is to generate and sell electricity to the public . The EPA correctly recognizes these key differences in its Preamble and Horsehead supports EPA’s conclusion that Industrial Residuals produced at industrial and manufacturing facilities should not be subject to this rulemaking.

Finally, EPA’s decision to maintain the Bevill exclusion for Industrial Residuals is consistent with EPA precedent and supp orted by prior EPA analysis of the issue. For instance, on May 22, 2000, EPA issued a regulatory determination in which EPA concluded, in part, that the fossil fuel
combustion wastes from non

- utility boilers and co

- managed wastes not generated by electric utilities did not warrant regulation as hazardous waste under Subtitle C of RCRA.19 This determination was based, in part, on the agency’s March 1999 report analyzing wastes generated from sources other than those from the electric power sector. The report determined that such wastes, including those from non

- utility boilers, should remain exempt from RCRA Subtitle
C.20

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 R CRA. The commenter is also referred to Unit VI for a discussion of what industrial sectors and covered by the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08270

- 1 

### Organization 1 

### : Cliffs Natural Resources Inc. (Cliffs) 

### Commenter 1 : David Z. Skolasinski Commenter Type: Other Company
Classification: Substantive563

Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.3.1 3.1.2 7.3.1 7.1.1.2 5.5.1 5.5.2 

### Comment Excerpt Text: The Impact To Non

- Utilities Of A Subtitle C Determination Of CCRs

The SBP power plant is not a part of the Electrical Power Sector (Electric Utilities and Independent Power Producers) as defined in 75 Fed. Reg. at 35,130 because its primary business
is t o provide electricity and heat for the ore mining and processing operations as opposed to the sale of electrical power and heat to the public. Therefore, CCRs produced at this plant are not subject to the proposed Rule. However, because of the precedent th at will be set by this rulemaking and the possibility that EPA may proceed with rulemaking to address CCRs from N

on

- Electric Power Sector power plants at some future date, Cliffs is very interested in EPA's CCR waste determination in this rulemaking.

Ex cept for a portion of the CCRs that are sold for beneficial use, all of the remaining CCRs that are produced at SBP are disposed in an engineered landfill, the design of which includes an impermeable synthetic liner beneath the CCR pile, an impermeable syn thetic cap over each filled landfill cell, a leachate collection system to remove stOlmwater that accumulates from within the CCR pile on top of the liner, and monitoring wells to monitor the integrity of the landfill. The landfill was designed in conforma nce with Minnesota solid waste regulations. The Minnesota Pollution Control Agency approved the design of the landfill and issued a solid waste disposal system permit for the landfill that includes monitoring and repOliing requirements among other
conditio ns. There are other landfills in the state that are similarly designed, permitted, and operated by public utilities. Should EPA decide to regulate CCRs as Subtitle C hazardous wastes, this would result in a significantly increased pennitting effOli for suc h landfills, along with significantly increased costs of construction, operation, monitoring, and reporting. This would result in a much greater burden to the state permitting agency, as well as to the owner and operator of the landfill with no environment al benefit being derived.

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 Unit VI
for a discussion of what industrial sector s and covered by the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08787

- 27 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

### Commenter 1 : Stephen A. Cobb (Al) Commenter Type: State Government
Classification: Sub stantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 7.3.1 3.5.2.1 

### Comment Excerpt Text: It is not clear that imposing these requirements on CCR generators is addressing a demonstrable problem. The principal justification that EPA uses in advocating for Subtitle C regulation564

involves damage cases associated with disposal. None of the cited inc idents involves management of CCRs before the point of disposal. In fact, EPA's decision to maintain the exemption from being regulated as hazardous waste for CCRs that are beneficially used leads to a contradictory state of affairs where the exact same ma terial would face radically different management standards while on

- site at the point of generation up to the point of final disposition, depending on what the ultimate disposition of the material is to be.

A similar contradiction exists with respect to CCRs destined for disposal that are generated by facilities EPA has elected not to regulate under the proposal (i.e., non

- investor owned and non

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

- site at the generating facility; however, it would be problematic and confusing for re gulators, waste managers, beneficial users, and especially the public for materials managed and disposed off

- site or beneficially used.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR und er 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

- 08850

- 10 

### Organization 1 

### : Lansing Board of Water & Light (BWL) 

### Commenter 1 : Lansing Board of Water & Light (BWL) Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Perception Problems Arise from the Definition of S001. The Lan sing Board of Water & Light operates both electric generating boilers and steam heat boilers. Only those boilers that are used for electric generation and fall under the NAICS Code 221112 are included in the Subtitle C proposal. Coal ash generated by a fac ility only a few miles away, generating both steam and electricity is not considered hazardous because it is not classified as an electric utility. Ash generated at all of these facilities possess close to identical characteristics. This inconsistency

crea tes an ambiguous perception and leaves room for abuse.

Response: The Agency acknowledges and appreciates this comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 54 

### Organization 1 

### : Prairie State Generating Company, LLC (PSGC) 

### Commenter 1 : Keith Bastian Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:565

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Subtitle D should only govern CCRs generated by electric utilities and independent power producers. Throughout the preamble, EPA indicates that only coal ash generated by electric utilities and independent power producers is subject to regulation. However, the applicability section does not limit the applicability of the rule to CCRs generated by electr ic utilities and independent power producers. To avoid any confusion, PSGC recommends that the applicability section be modified to be consistent with the applicability section proposed for Subtitle C.

Response: The commenter is referred to Unit IV of t oday’s preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit VI for a discussion of what industrial sectors and covered by the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09266

- 1 

### Organization 1 

### : Power and Water Department, Michigan State University (MSU) 

### Commenter 1 : Robert Ellerhorst Commenter Type: Electric Utility Facility
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt T ext: EPA stated they intended to exclude CCRs regulated by non

- utility boilers, such as the boilers operated by MSU, from all regulation under the Proposed CCR Rule; however, EPA failed to include such an exclusion in the rules proposed for the Subtitle D option. In Section A of the preamble to the Proposed Rule, EPA stated that "CCRs from non

- utility boilers burning coal are not included in today’s proposed rule." 75 Fed. Reg. at 35,129. EPA expanded on this statement in Section IV.F of the preamble, entit led "EPA Is Not Proposing To Revise the Bevill Determinationfor CCRs Generated by Non

- Utilities": "In this notice, EPA is not proposing to revise the Bevill exclusion for CCRs generated at facilities that are not part of the electric power
sector and which use coal as the fuel in non

- utility boilers, such as manufacturing facilities, universities, and hospitals. The Agency lacks sufficient information at this time to determine an appropriate course of action for the wastes from these facilities.

Industrie s that primarily burn coal to generate power for their own purposes (i.e., non

- utilities), also known as combined heat and power (CHP) plants, are primarily engaged in business activities, such as agriculture, mining, manufacturing, transportation, and edu cation."

75 Fed. Reg. 35,165.

With respect to the Subtitle C option, EPA included such an exclusion for nonutilities in the SOO 1 waste code listing, which expressly excludes facilities that are outside ofthe electric power sector, i.e., facilities not included within NAICS code 221112. With respect to the Subtitle D option, however, the definitions of "Coal Combustion Residuals" contained in proposed 40 C.F.R. § 257.40 does not distinguish between CCRs generated by utilities and non

- utilities.566

In ord er correct this oversight, MSU requests that EPA revise the definition of CCRs in the Subtitle D option as follows:

Coal Combustion Residuals (CCRs) means fly ash, bottom ash, boiler slag, and flue gas
desulfurization materials. CCRs are also known as co al combustion wastes (CCWs) and fossil fuel combustion (FFC) wastes generated by the electric power sector (Electric Utilities and Independent Power Producers, i.e .. NAICS code 221112 plants).

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 Unit VI for a discussion of what industrial sectors and covered by the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09273

- 14 

### Organization 1 

### : Iowa Department of Natural Resources (IDNR) 

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



### Comm ent Excerpt Text: Excluding Non

- Utility CCR Generation Is Not The Answer. Excluding all nonutility generation CCR from regulation under the proposed Subtitle C approach will result in enforcement inconsistencies. If the goal is environmental protection from the documented negative environmental impacts of the mismanagement of CCR, then the Agency should not be exempting
CCR from non

- utility generators (e.g. manufacturing, universities, hospitals, etc.), as their CCR is often chemically identical to that generated by electric utilities and in some cases contains higher pollutant levels than CCR generated by electric utilities.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under subtitl e D of RCRA. The commenter is also referred to Unit VI for a discussion of what industrial sectors and covered by the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09423

- 2 

### Organization 1 

### : American Forest and Paper Association (AF&PA) 

### Commenter 1 : Paul Noe Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.3.1 

### Comment Excerpt Text:567

EPA Correctly Excluded Pulp and Paper Mill Coal Combustion Residuals from this Rulema king

AF&PA supports EPA’s decision not to include coal combustion residuals from the manufacturing sector in this rulemaking. The pulp and paper industry’s management of coal ash
differs somewhat from that of the electric utilities

– which uses 95 percent of all coal in the U.S. Therefore, we think that it makes sense to review our operations before regulating them.

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 Unit VI for a discussion of what industrial sectors and covered by the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09423

- 4 

### Organization 1 

### : American Forest and Paper Association (AF&PA) 

### Commenter 1 : Paul Noe
Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: AF&PA agrees with EPA’s proposed definition of the Electric Power Sector as “that sector of the power generating indu stry that comprises electricity

- only and combined

- heat

- and

- power (CHP) plants whose primary business is to sell electricity or electricity and heat, to the public.” We believe this definition properly excludes other energy generating units associated with industrial operations that may only incidentally sell electricity to the public.

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 Unit VI for a discussion of what industrial sectors and covered by the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09423

- 5 

### Organization 1 

### : American Forest and Paper Association (AF&PA) 

### Commenter 1 : Paul Noe Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.9 4.7 4.4.3 

### Comment Excerpt Text: EPA Must Exclude CCRs from Pulp and Paper Mill Coal Combustion under the Definition of
CCR568

Within both the Sub title C proposal (at Section 264.1301) and Subtitle D proposal (at Section 257.40(b)), EPA must revise its definitions of “Coal Combustion Residuals (CCRs)” to exclude

non

- electric utility residuals. The current definitions do not distinguish between elect ric utility
and non

- electric utility coal combustion residuals. However, the entire preamble of the rule for both the Subtitle C and Subtitle D proposals states that the proposals

– regardless of which is
chosen

-- are directed towards electric utility res iduals only. Therefore, the definitions must be revised to address only those residuals meant to be regulated by this rulemaking.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under su btitle D of RCRA. The commenter is also referred to Unit VI for a discussion of what industrial sectors and covered by the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09951

- 5 

### 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: EPA has requested information and data on CCRs that are generated by nonutility industries such

as vo lumes generated, characteristics of the CCRs and whether they are co

- managed with other wastes generated by the non

- utility industry.

Full Circle Solutions, Inc. has contracted with many non

- utility generators of CCPs . These include institutional produce rs such as hospitals and schools. They also include a variety of industries such as furniture, food, textile, and chemical manufacturers .

In general, mo non

- utility CCP producers have boilers much smaller than those of utilities. They typically produce 5 , to 15, tons per year of CCPs at each plant.

The characteristics are nearly the same as utility CCPs. TCLP leachates are virtually identical. The major difference is the lack of FGD scrubbers. There are some minor differences with fly
ash and bottom ash. Many non

- utility industries use stoker boilers instead of pulverized coal boilers. The CCPs from stokers are generally coarser and have more carbon than those from pulverized coal boilers.

Disposal of non

- utility CCPs may be either with or without other wastes. Typically, CCPs are briefly stored in a silo and then trucked to a disposal site. This may be an on

- site CCP landfill dedicated solely to CCPs. On

- site disposal may also be together with other industry generated wastes . However, most of the non

- ut ility generators we have encountered have disposed of their CCP waste in a municipal solid waste landfill where it is mixed with many other types of waste.569

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 Unit VI for a discussion of what industrial sectors and covered by the rule.



### Commen t Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10681_DC

- 069

- 1 

### Organization 1 

### : American Forest & Paper Association (AF&PA) 

### Commenter 1 : Amy E. Schaffer Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.3.1 

### Comment Excerpt Text: The forest products industry accounts for approximately 5 percent of the total U.S. manufacturing GOP, putting it on par with the automotive and chemical industries. Industry companies produce $200 billion in products annually and employ approximately 900,000 people earning $54 billion in annual payroll. The industry is among the top 10 manufacturing sector employers in 48 states.

According to the Energy Information Administration, the pulp and paper industry uses about 1 percent of the coal burned in the United States. We use coal to generate electricity and steam. Virtually all our facilities that generate electricity do so using highly

- efficient combined heat and power technology. We are the largest user of coal after the electric utility sector. As a result, we are greatly interested in the rulemaking that EPA is undertaking concerning the regulatory scheme for coal combustion byproducts.

AF&PA supports EPA's decision not to include coal combustion byproduc ts from the manufacturing sector in this rulemaking. We believe that our management of coal ash differs somewhat from that of the electric utilities. Pulp and paper mills use a wide variety of fuels

-- in addition to coal. As a result, our mills frequently co

- manage coal ash with ash generated from other fuels, particularly biomass. We believe that our ash management units are significantly smaller than those in the utility sector. Therefore, we think that it makes sense to review our operations before regu lating them.

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 Unit VI
for a discussion of what industrial sectors and covered b y the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11652_K

- 067

- 2 

### Organization 1 

### : Tennessee Paper Council (TPC) and American Forest & Paper Association (AF&PA) 

### Commenter 1 : Richard Holland Commenter Type: Trade Association
Classification: Substantive570

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



### Comment Excerpt Text: We support EPA's decision not to include coal combustion byproducts from the manufacturing sector in this rulemaking. We believe that our management of coal ash differs somewha t from that of the electric utilities. Pulp and paper mills use a wide variety of fuels

-- in addition to coal. As a result, our mills frequently co

- manage coal ash with ash generated from other fuels, particularly biomass. We believe that our ash manageme nt units are significantly smaller than those in the utility sector. Therefore, we think that it makes sense to review our operations before regulating them.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our

decis ion to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit VI for a discussion of what industrial sectors and covered by the rule.



### Comment Number: TRANS

- ARL

- 0005

- 1 

### Organization 1 

### : American Forest and Paper Association 

### Commenter 1 : Amy Schaffer Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: AF&PA supports EPA's decision not to include coal combustion byproducts from the
manufacturi ng sector in this rulemaking. We believe that our management of coal ash differs somewhat from that of the electric utilities. Pulp and paper mills use a wide variety of fuels in addition to coal. As a result, our mills frequently co

- manage coal ash with a sh generated from other fuels, particularly biomass. We believe that our ash management units are significantly smaller than those in the electric utility sector. Therefore, we think it makes sense to review our operations separately before regulating them

.

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 Unit VI for a discussion of what industrial sectors and covered by the rule

.



### Comment Number: TRANS

- PIT

- 0025

- 4 

### Organization 1 

### : Alcoa 

### Commenter 1 : Tony Schoedel Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:571



### Comment Excerpt Text: Four, as stated in the proposed rule, industrial facilities like Alcoa are exempt from this rule. Alcoa requests EPA clarify the distinction between industrial and utility utilizing the definitions
contained in the Green Subtitle of the Clean Air Act.

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 Unit VI for a discussion of what industrial sectors and covered by the rule.

Section 2.4

- Legal Issues with the ELG Proposed Rule related to CCR
No comments are associated with this issue.

Section 2.4.1

- CWA authority to propose BMPs for CCR surface impoundments
No comments are associated with this issue.

Section 2.4.2

- Exclusions fro m ELG/CCR rules (e.g., CCR used for mine reclamation; size cutoff) Total Number of Submissions: 5 Total Number of Comments: 7



### Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0013

- 4 

### Organization 1 

### : Florida Electric Power Coordinating Group, Inc. (FCG) 

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



### Comment Excerpt Text: Additionally, the FCG requests that EPA confirm that “combustion residual leachate” does not apply to stormwater from landfills or water that comes into contact with CCRs that have been beneficially used.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0021

- 2 

### Organization 1 

### : The Large Public Power Coun cil (LPPC) 

### Commenter 1 : Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 14.1.1.2 14.1.1.1 14.1.1.3572



### Comment Excerpt Text: I. ELGs Should Maintain the Option of Impounding Bottom Ash Transport Water for All Existing Facilities.

In the proposed rule, three of the eight options (Options 4, 4a, and 5); including the lead option for regulating bottom ash, propose to set a zero discharge limitation for bottom ash.

Th is will likely require the use of a dry handling technology that will obviate the use of transport water for bottom ash. [Footnote 3: 78 Fed. Reg. 34,462 (June 7, 2013).] The alterntive to meeting this zero discharge limitation would involve the installati on of technology for “managing a wet sluicing bottom ash handling system so that it does not discharge bottom ash transport water or pollutants associated with the bottom ash transport water.” [Footnote 4:78 Fed. Reg. 34,462 (June 7, 2013).]

Approximately 20 percent of affected plants that generate bottom ash use a dry handling technology or other system that eliminates the use of the transport water. The remaining 80 percent of the plants use water to transport the bottom ash to a surface impoundment or
d ewatering bins.5 Discharges occur from the surface impoundments or from blowdown from the water reused in the sluicing process. At some locations, these discharges are sent to an on

- site central wastewater treatment facility. Therefore, EPA’s adoption of a zero discharge limit for this wastewater stream would have a major impact on the electric power industry. Specifically, it would require 80 percent of the current coal fleet to convert to dry handling of coal ash or other technology for eliminating the di scharge of any pollutants from the discharge of the bottom ash transport water. These options would impose significant cost on the industry: retrofits of new material handling equipment in the limited space underneath existing boilers are complex and

expen sive.

Of additional concern is the distinction the proposed rule makes between smaller units (= 400 MW) and larger units (> 400 MW) with regard to bottom ash transport water. EPA’s preferred option is to allow for the continued use of wet handling at smal ler units, while requiring larger units to convert to dry handling systems. For existing units, EPA should continue to allow the use of impoundments and wet sluicing of bottom ash regardless of unit size.

EPA’s lead option (4a) would allow combustion resi dual leachate (generated from bottom and fly ash impoundments or landfills) to be controlled by a surface impoundment, while bottom ash transport water from units greater than 400 MW would have to use dry handling containment. There is no rationale for req uiring dry handling of bottom ash when the Agency is clear that combustion residual leachate can be adequately controlled by an impoundment.[Footnote 6:78 Fed. Reg. 34,463 (June 7, 2013).] EPA has proposed that facilities sample and monitor the residual le achate from surface impoundments and landfills containing combustion residuals (including bottom ash) to ensure these wastes are not adversely impacting the environment. As noted below, the composition of such wastes has not significantly changed
since the regulations were last promulgated in 1982. If an impoundment provides appropriate treatment for combustion residual leachate, it will also provide appropriate treatment for bottom ash transport water. Consistent with preferred options 3a, 3b, and 3, EPA s hould therefore allow EGUs with units573

greater than 400 MW to sample and monitor bottom ash transport water, as proposed for combustion residual leachate, rather than require conversion to a dry handling system.

Additionally, unlike FGD wastewater and some wet fly ash handling, the chemical compositions of bottom ash have not changed significantly since the last ELG was issued in 1982. There are no new chemicals in the bottom ash transport water that the current impoundment systems do not adequately treat. The characteristics of bottom ash

– inert, angular shaped, granular particles, and glass

- like surface structure

– results in its multiple industrial uses, such as aggregate in light weight cement, a feedstock for cement, shingles, and aggregate in road
bas es. These beneficial uses were developed with bottom ash mined from surface impoundments
and should continue.

In addition, industry experience indicates that converting existing EGU’s bottom ash handling systems to dry handling systems is extremely costly and has minimal health and environmental benefits. Retrofitting dry collection would require long unit outages and substantial associated replacement power costs during the outages. In addition, the construction required for dry
collection would occur in the section of the facility that is most congested, which will further increase the cost and technical challenges of completing such retrofits. Therefore, because there will be little environmental benefit and significant costs, EPA should maintain the sur face impoundments treatment option for bottom ash transport water at all EGUs regardless of unit
size.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0036

- 2 

### Organization 1 

### : Council of Industrial Boile r Owners (CIBO) 

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



### Comment Excerpt Text: The rule should also clearly state that proposed rule is not applicable to coal mine sites where CCRs have been or are being used for mineland reclamation. Nothing in the rule or record indicates that EPA intends this rule to cover CCR management for mineland reclamation, nor does the record include any data or analysis that woul d support the application of this rule to those activities. This rule references the pending CCR rule proposed in 2010 but not finalized. The pending CCR rule clearly states that it does not address the beneficial use of CCR at mine
sites or in mines. Ther efore, to dispel any concern that this proposed ELG rule could apply to mineland reclamation use of CCRs, the applicability provision should state clearly that it does

not.574



### Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0036

- 3 

### Organization 1 

### : Council of Industria l Boiler Owners (CIBO) 

### Commenter 1 : Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 9.3.13 

### Comment Excerpt Text: A related concern is how EPA and States may use the economic analysis supporting these proposed ELGs for CCRs. The final rule should make clear that the economic analysis supports this proposed ELG rule only and should not be used by permit writers in the future for CCRs
related to non

- EGUs.

Provide th e exclusion in regulatory text. The preamble explains that the proposed guidelines do not apply to industries that generate power for use in manufacturing. 77 FR 34446. However, the exclusion of those sources does not appear in the applicability provision at Proposed § 423.10 or in any other regulatory text. Neither the preamble nor the regulatory text expressly excludes another industrial source that could be inadvertently caught up in the rule: university facilities that generate electricity for onsite ca mpus use. Refinements in the regulation (not only the preamble) are needed to ensure states do not incorrectly apply this rule to sources that are not in
the steam

- electric source category.

So that there be no possible confusion as to what sources are cov ered by this rule, CIBO suggests that the exemption be made a part of the regulation itself, not only the preamble, and that the exemption very clearly relate to the wide range of facility operations that are not part of the steam electric point source cat egory. Further any economic analysis is establishing ELGs for CCRs. The final rule should make clear that the economic analysis supports this proposed ELG rule only and should not be used by permit writers in the future for CCR related to non

- EGUs.

Respon se: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0038

- 9 

### Organization 1 

### : Edison Electric Institute (EEI) 

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



### Comment Excerpt Text: Furthermore, EPA should clarify that the term “combustion residual leachate” does not include water that has come into contact with CCR that has been beneficially used and has not been disposed of or otherwise managed in a CCR landfill or surface impoundment.575

It is important to encourage the beneficial use of CCR. For example landfills and impoundments are sometimes constructed using structural fill and embankments using CCR. Operators of a
landfi ll may use CCR for daily cover and as part of the final cover material when the landfill is
closed. CCR can also be used as road base for service roads to landfills and for other roads as
well.

These uses of CCR are not used to “contain” residuals and the refore do not fall within the proposed definition. But EPA should clarify that this is so. The final ELG rule should say clearly that the term “combustion residual leachate” does not include water that may come into
incidental contact with CCR used in bene ficial use applications.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0055

- 2 

### Organization 1 

### : ARIPPA 

### Commenter 1 : Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.7 

### Comment Excerpt Text: b. Applicability of the rule relative to the beneficial use of coal combustion residuals in coal
mine land reclamation

In discussing this in the Proposed ELG rule and in the technical guidance document, EPA has made the assumption that the disposal of CCRs from electric generation units would be in lined landfills. A key aspect of this assumption is described in both the Proposed ELG rule and the technical guidance doc ument related to ELGs. While the proposed CCR Rule discusses the use of lined landfills related to the disposal of CCRs, the Proposed CCR rule acknowledges that it would not be applicable CCRs beneficially used and that is was not applicable to CCRs being
used in coal mine land reclamation.

This is highlighted in the Executive Summary of the proposed rule regarding ELGs, which
reads1:

“This proposed rule would reduce current toxic and other pollutant discharges and their associated impacts. In general, de pending on the option, the proposed rule would establish new or additional requirements for wastewaters associated with the following processes and byproducts: Flue gas desulfurization (FGD), fly ash, bottom ash, flue gas mercury control,
combustion residu al leachate from landfills and surface impoundments, gasification of fuels such as coal and petroleum coke. In addition to the proposed requirements, as part of this rulemaking EPA is considering establishing best management practices (BMP) requirements th at would apply to surface impoundments containing coal combustion residuals (e.g., ash ponds, FGD576

ponds). EPA is also considering establishing a voluntary program that would provide incentives for existing power plants that dewater and close their surface impoundments containing combustion residuals, and for power plants that eliminate the discharge of all process wastewater (excluding cooling water discharges).”

ARIPPA has concerns about this aspect of the rule. First, the proposed CCR rule is clear

regar ding the rules applicability to the use of CCRs in coal mine land reclamation. The Summary of the proposed rule contains the following statements2:

“EPA is not proposing to change the May 2000 Regulatory Determination for beneficially used CCRs, which are currently exempt from the hazardous waste regulations under Section 3001(b)(3)(A) of RCRA. However, EPA is clarifying this determination and seeking comment on potential refinements for certain beneficial uses. EPA is also not proposing to address the pla cement of CCRs in mines or non

- mine fill uses of CCRs at coal mine sites in this action.”

As such, the proposed ELG should not be applicable to CCRs used in mine land reclamation and must be clearly stated this in the final ELG rule.

Further, the technic al development document does not discuss the use of CCRs in coal mine land reclamation. This demonstrates that EPA did not study this aspect and as a result state in the final rule that it is not applicable to coal mine sites beneficially utilizing coal as h in the site reclamation. Without the clarification, beneficial utilization in mine sites would be become tremendously expensive if not impossible?

ARIPPA had provided comments on the CCR rule. In its comments, ARIPPA described the
multi

- step process uti lized by Pennsylvania Department of Environmental Protection’s program regarding the beneficial use of coal combustion residuals in mine land reclamation. IF the CCR meets the physical, chemical, and leaching characteristic of CCR as set forth in their rul es, it would be approved for beneficial use in coal mine land reclamation.

Over 205 million tons of coal refuse has been burned in coal refuse fired CFB facilities. Further, the CCRs produced has been utilized in reclaiming over 7,200 acres of coal mine l ands returning the land to a productive use, eliminating sites as source of air pollution, eliminating sedimentation problems and ameliorating mine drainage improving water quality.

EPA’s Office of Water is aware of this and other success in Pennsylvania related to remining when it established a new Coal Remining Subcategory in 40CFR Part 434 to reduce severe and extensive damage resulting from abandoned mine lands. Acid mine drainage from abandoned coal mines is the number one water quality problem in the Appalachian States. It is estimated that there are over 1.1 million acres of abandoned coal mine lands, over 9,000 miles of streams polluted by acid mine drainage, and many miles of dangerous embankments, highwalls, and surface impoundments. The acid mine drainage that originates from these abandoned mine lands are considered "pre

- existing discharges."

The Coal Remining Subcategory covers discharges resulting from previous mining activities on mine land that have been abandoned (termed a "pre

- existing" di scharge). A coal remining577

operator must develop a site

- specific pollution abatement plan designed to reduce the pollution load from pre

- existing discharges. The plan must incorporate the design and implementation of Best Management Practices (BMPs). EPA pu blished a guidance manual which describes abandoned mine land conditions and the performance BMPs that have been successfully implemented on remining operations. The “COAL REMINING BEST MANAGEMENT PRACTICES GUIDANCE MANUAL” (EPA 821

- R

- 00

- 007, Published Mar ch 2000) developed by the Office of Water, Office of Science and Technology, Engineering and Analysis Division.

The BMP Manual describes a variety of uses of Coal Ash Use as a “Best Management Practice”. In fact, the following statement is made with regar d to coal refuse, which reads:

“Coal refuse reprocessing removes an acid

- producing material. This material is burned to produce electricity, and the ash that is produced, which is frequently alkaline, is returned to the
site where it can neutralize acid. (Page 23)”

ARIPPA Member facilities use remined coal refuse as fuel for their CFB Boilers. They also beneficially use the highly alkaline CFB Coal Combustion Byproduct (approved for beneficial use under Pennsylvania’s regulations) as part of their abateme nt plan to address pre

- mining pollution discharges from the areas where the coal refuse is being mined.

Of further interests, the preamble to the ELG reference several EPA rule makings related to the control of air pollutants. The preamble to these refere nced rules includes comments regarding the multiple environmental benefits related to the coal refuse fired units resulting from the burning
of the coal refuse and the reclamation of these mine land sites.

ARIPPA believes that EPA needs to acknowledge tha t the proposed rule does not address the
beneficial utilization of coal ash in mine land reclamation and as such the effluent limits are not applicable to these sites. Further, EPA should restate that the use of Coal Ash in mine land
reclamation is a BMP a nd will continue to be a BMP for remining and mine land reclamation operations.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0055

- 3 

### Organization 1 

### : ARIPPA 

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



### Comment Excerpt Text: c. Proposed Applicability Alternatives578

EPA has identified four preferred alternatives for regulation of existing discharg es in the proposed rule (and it has identified one preferred alternative for regulation of new sources).
These are:

1. Discharges directly to surface water from existing facilities 2. Discharges to POTWs from existing facilities 3. Discharges directly to surface water from new sources 4. Discharges to POTWs from new sources

EPA’s proposed options to addressed the rule, includes language that provides exceptions; for example

- Option 3A provides an exception for oil fired units and small generating units (I.e., 50 MW or Smaller)

- Option 3B provides s similar exception for oil fired units and small generating units (I.e., 50 MW or Smaller)

- Option 3C provides an exception for small generating (i.e., 50 MW or smaller)”

- Option 4a provides an exception for zero discharge for all units less than 400 MW with the exception of all generating units with a nameplate capacity of 400 MW or less (for those generating units that are less than or equal to 400 MW, the proposed rule would set BAT equal to
BPT for dis charges of pollutants found in the bottom ash transport water). In addition, for oilfired generating units and small generating units (i.e., 50 MW or smaller) that are existing sources and discharge directly to surface waters, under the four preferred alte rnatives for regulation of existing sources, the proposed rule would establish effluent limits (BAT) equal to
the current BPT effluent limits for the waste streams listed above.

While EPA solicited information from ARIPPA Plants, but due to the small size and number, EPA did not visit these plants to fully examine their water management strategies and how they operate. Based on the knowledge that the CCR management systems associated with CFB Technology, the CCRs are basically managed as dry ash systems an d any water associated with ash management is used to condition the ash for placement in a fill (lined landfill, structural fill, or in coal mine land reclamation).

Accordingly ARIPPA suggests that EPA provides an exception for units (that are less than
3 00MW) utilizing dry ash management systems

- or

- CFB

- FBC units (less than 150 MW) that also utilize dry ash management systems.

Response: The Agency acknowledges and appreciates the comment.

Section 2.4.3

- Other legal issues related to ELG/CCR coordination, including impacts of other rules (e.g., CAA) and cumulative impacts Total Number of Submissions: 8 Total Number of Comments: 9579



### Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0006

- 1 

### Organization 1 

### : Commenter 1 : Anonymous Commenter Type: Anonymous
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: One 1000 megawatt coal fired power plant burns 4 million tons of coal per year. Coal varies
from 96% carbon to 25% carbon. That means that 166667 tons to 12 million tons of cinders and ash are left over. As I told you in my last comment, that includes abou t 1/3 of the periodic table, including uranium and its decay products, arsenic, etcetera. Coal ash and cinders are radioactive waste equivalent to nuclear waste and should be treated the same as nuclear waste. Besides that, coal ash and cinders contain po isonous elements that
dissolve in water.
Coal ash and cinders must be treated as nuclear waste. The limits for water and air pollution for coal fired power plants must be the same as the limits for nuclear power plants.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0014

- 5 

### Organization 1 

### : Pennsylvania Coal Alliance (PCA) 

### Commenter 1 : Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 13.1 16.2 

### Comment Excerpt Text: EPA should take into consideration the cumulative effect of its recent proposed and enacted rules on the electric power industry and provide maximum flexibility regarding implementation and
im plementation timelines to mitigate the collective impact of all the various rulemakings.

Since June 2010, EPA has proposed and/or published nine major rulemakings including:

o CCRs as a possible hazardous waste under RCRA o NESHAP rule regarding Hazardo us Air Pollutants (HAPs) o Cooling water withdrawals
o Cross

- State Air Pollution Rule (CSAPR) o Mercury and Air Toxics (MATS)
o NSPS for carbon dioxide emissions o NAAQS for fine particulate matter580

o Pre

- permit fine particulate monitoring requirement exemp tions o Greenhouse gas emissions and other climate changes

From a practical standpoint, EPA must consider the cumulative implementation impacts of not only the availability of capital to make the required changes, but also the design and engineering
needs including the ability to find, contract and schedule contractors. Furthermore, this must all be done in the most comprehensive, cost

- effective, feasible approach encompassing all a company’s facilities to allow for continued uninterrupted generation relia bility.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0016

- 22 

### Organization 1 

### : Southern Company 

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



### Comment Excerpt Text: Compliance Timing Issues Southern Company has more experience retrofitting environmental controls than any other utility in the industry. Southern has spent $8.7 billion dollars on
environ mental controls since 1990. The Company has installed scrubbers and SCRs on 26 and 20 units, respectively.

During the proposed implementation period of the ELG Rule, Southern’s fossil generation fleet will likely be in the midst of an unprecedented period of environmental retrofits to comply with Mercury and Air Toxics Standards (MATS), ozone revisions, the CCR rule, the § 316(b) rule, and others. Therefore, we ask that EPA clarify that state permitting authorities have the ability to provide case

- by

- case compliance schedules that may extend past July 2022.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0019

- 14 

### Organization 1 

### : American Electric Power (AEP) 

### Commenter 1 : Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 9.3.13 

### Comment Excerpt Text: EPA’s annualization of the compliance costs is misleading in that: 1) it characterizes costs as affordable; and 2) neglects to consider the impacts to companies for financing in a capital581

intensive industry. EPA assumes that the cost of these retrofits will be annualized over a 20

- year period, but this position inherently assumes that all of the affected facilities from this rule will operate over that entire timeframe. Given the current environmental regulatory climate, older and less efficient facilities that dispatch less frequently, but provide some economic benefit, will be adversely affected through these guidelines and future rule promulgations, such as with proposed CCR and 316(b) rules, as well as the anticipated Greenhouse Gas Standards for existing sources. Though the proposed ELG rule may not make these units uneconomic to generate elec tricity over a short term by itself, the cumulative effect of the ELG in combination of other regulations may push these units into an accelerated retirement. Many of the affected facilities will not have 20

- year lifespans or service lives, but will still have to shoulder the financial burden to comply with these rules in the short term. The EPA’s analysis is not sufficiently refined to properly account for these shortened facility service life periods.

For example, such a scenario where a shortened servic e life is evident when considering the EPA Settlement Agreement that remedies the dispute with the Regional Haze Rule state implementation plan entered in Oklahoma. In the Settlement Agreement AEP and EPA agreed
that one of the coal

- fired units of the Nort heastern Station will retire in 2016, while the other unit will operate through 2026. The remaining operating unit will have to meet compliance with the ELG, as well as CCR, and these costs cannot be annualized over twenty years because the remaining plant life ends in 2026. Any costs that aren’t fully amortized will need depreciation adjustment to align with plant retirement dates, elevating the annualized cost impact of the rule. Aligning cost recovery with customers who receive the benefits of service is vitally important for regulatory commissions in order to not unfairly burden future customers with costs for which they do not receive any service benefit.

Further, the EPA assessment of estimated costs for compliance neglects to consider the capital

req uirements of utility’s to install control technologies over a short compliance period of a few years. As stated above, the AEP estimated costs could potentially approach $4 billion. To contrast, AEP’s near

- term capital forecast is $3+ billion per year, but these expenditures encompass all business segments including transmission and distribution, in addition to generation. Expenditures to comply with the ELG will directly follow the current large expenditures within AEP’s capital budget to comply with the M ercury and Air Toxics Standard by the 2015

- 2016 timeframe.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0019

- 2 

### Organization 1 

### : American Electric Power (AEP) 

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



### Comment Excerpt Text:582

Implications of Cumulative Environmental Rules

AEP is concerned that the cumulative impact of the extraordinary nu mber of current rulemakings which would govern various emissions and releases from steam electric power generating facilities, as well as setting new effluent guidelines standards, controls on cooling water intakes, and coal combustion residual (CCR) requi rements, will have a significant impact on the reliability of the national electric grid and on the economy. AEP supports regulations that
achieve cost

- effective, long

- term, environmental benefits, but we remain concerned with the
accelerated timeframes th at EPA plans for implementation of these rules. We believe that the agency should give careful consideration to comments from the actual operators of the facilities affected by the rule, which have the first

- hand knowledge and experience in designing and
i nstalling environmental retrofits. Our comments regarding the implementation and coordination of the schedule for the ELG and CCR rules provide more specific details concerning this issue, but additional coordination of implementation timelines should be c onsidered for all of the pending regulatory actions that affect these sources.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0029

- 4 

### Organization 1 

### : Midwest Generation, LLC 

### Commenter 1 : Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 13.1 

### Comment Excerpt Text: Midwest Gen appreciates that EPA outlined other Clean Air Act, Clean Water Act, and Resou rce Conservation and Recovery Act regulations facing the power sector in the preamble to its ELG proposal. [Footnote 4: See 78 Fed. Reg. at 34440

- 41.] Midwest Gen supports EPA’s acknowledgement of these concurrent requirements. All of the rules affecting t he power sector overlap with each other, and all of the rules will have some impact on power sector reliability. Midwest Gen encourages EPA to take into account the direct effect each rule has on available capital and labor resources, with many of the rule s individually running into the hundreds of millions of dollars in compliance costs. The impact of these multiple regulations is particularly problematic for merchant producers like Midwest Gen who cannot finance the compliance costs over the same lengths of time allowed to regulated utilities and cannot pass these costs along to

rate

- payers, as regulated utilities do.

Executive Order 13563 directs EPA to “tailor its regulations to impose the least burden on society, consistent with obtaining regulatory ob jectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations.” [Footnote 5: See 76 Fed. Reg. at 3821.]As EPA moves forward with the ELGs and the other rules affecting the power sector,
Midwest Gen en courages EPA to perform a cumulative cost

- benefit analysis on all of the rules, including reliability standards, affecting the electric power industry. By cumulatively evaluating583

the costs, the timing, and the impacts on reliability of implementation of th e various rules affecting the power sector, EPA can reduce compliance costs where there are synergies, streamline the regulatory process, ensure system reliability, and provide greater certainty for the regulated industry.

Response: The Agency acknowledg es and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0054

- 8 

### Organization 1 

### : Earthjustice 

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



### Comment Excerpt Text:
XV. EPA’S INTEGRATION OF THE ELG AND CCR RULES MUST CONSIDER THE
NATURE AND SCOPE OF THE RISKS POSED BY COAL COMBUSTION RESIDUALS TO
HUMAN HEALTH AND THE ENVIRONMENT.

EPA’s efforts to “align” the proposed ELG and CCR rules make consider the distinct and significant risks posed by each pollution source. Use of data from the 2010 ELG surveys can enhance understanding of the risks posed by coal ash, but there is also a danger that the data will be misused. In fact, EPA’s proposed use of several data sets is likely to underestimate significantly the risk to human health and the environment from improperly managed coal ash. Further, EPA appears in this proposed rule and in the coal ash Notice of Availability that preceded it, to be ignoring ELG sur vey data that show distinctly increased risk from coal ash. The desired “alignment” of the rules must not take precedence over the goal of protecting health and the environment from all risks posed by power plant wastes.

A. FOREMOST EPA MUST ENSURE THAT T HE ELG AND CCR RULES FULFILL THE
MANDATES OF THE CLEAN WATER ACT AND THE RESOURCE CONSERVATION
AND RECOVERY ACT.

In the preamble to the proposed ELG rule, EPA acknowledged the intersection between the CCR and ELG rules and expressed the need to “align and structure” the CCR rule to account for any final requirements adopted under the ELG rule. [Footnote 851: 78 Fed. Reg. at 34,441.] According to EPA, the Agency’s goal in the dual rulemaking process is “to ensure that the two rules work together to effectiv ely address the discharge of pollutants from steam electric generating facilities and the human health and environmental risks associated with the disposal of CCRs, without creating avoidable or unnecessary burdens.” [Footnote 852: Id.] First and foremost, EPA emphasized, the agency must fulfill its statutory mandate to restore and maintain water quality under the CWA and to protect human health and the environment under RCRA.” [Footnote 853: Id.]584

To that end, EPA proposed two primary means of integrating the ELG and CCR rules:

(1) through coordinating the design of any final substantive CCR [sic] regulatory requirements [with ELG requirements], and (2) through coordination of the timing and implementation of final rule requirements to provide facilities w ith a reasonable timeline for implementation that allows for coordinated planning and protects electricity reliability for consumers. [Footnote 854: 78 Fed. Reg. at 34,442.]

Thus the first method of integration involves the design and substance of the req uirements, and the second involves coordinating their timing. Under both means of “alignment,” EPA must consider the risks specific to CCR and fulfill its duty to protect health and the environment under
RCRA.

In implementing this two

- tiered approach, how ever, EPA strayed from its statutory mandate. First, the Agency suggested that data gathered for the ELG rulemaking may necessitate significant revision of the draft CCR risk assessment and risk screening analysis for fugitive dust. [Footnote 855: Id.] How ever, as explained below, EPA’s proposed arbitrary use of data collected for the ELG rule would result in the gross underestimation of risk from CCRs. Second, in the guise of promoting coordinated timing and implementation, EPA failed to properly
consider the risks posed by CCRs and the need to require timely compliance at high risk
facilities.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0056

- 9 

### Organization 1 

### : Utility Water Act Group 

### Commenter 1 : Elizabeth E. Aldridge Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: XXXVI. Cumulative Impacts Weigh Against EPA’s Expensive BAT Options

The steam electric industry faces a host of rigorous new requirements: several Clean Air Act regulations, the CCR rule, and the § 316(b) intake structure rule. EPA needs to evaluate the cumulative impact of these regulations as part of its assessment of the proposed
effluent guidelines rule. OMB guidance and Executive Order 13563 require EPA to consider the cumulative effects of regulations and seek to reduce overlapping and inconsistent requirements.

In particular, Executive Order 13563 directs agencies to take into account “to the extent practicable, the costs of cumulative regulations”585

(http://www.whitehouse.gov/sites/default/files/omb/inforeg/eo12866/eo13563_01182011.pdf). A memorandum for the heads of executive departments and agencies, issued March 20, 2012, by the Admi nistrator of the Office of Regulation and Regulatory Affairs, directs that, so far as the law allows, “agencies should take active steps to take account of the cumulative effects of new and existing rules and to identify opportunities to harmonize and stre amline multiple rules.” http://www.whitehouse.gov/sites/default/files/omb/assets/inforeg/cumulative

effectsguidance. pdf. Where appropriate and feasible, agencies should consider cumulative effects and opportunities for regulatory harmonization as part of their analysis of particular rules, and should carefully assess the appropriate content and timing of rules in light of those effects and opportunities. Also, the memorandum reminds agencies that they should choose regulatory approaches that “maximize net benefits.”

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0058

- 1 

### Organization 1 

### : Missouri Joint Municipal Electric Utility Commission (MPUA) 

### Commenter 1 : Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 13.1 

### Comment Excerpt Text: In particular, Executive Order 13563 directs agencies to take into account “to the extent practicable, the costs of cumu lative regulations.” A memorandum for the heads of executive departments and agencies, issued March 20, 2012, by the Administrator of the Office of Regulation and Regulatory Affairs, directs that, so far as the law allows, “agencies should take active step s to take account of the cumulative effects of new and existing rules and to identify opportunities to harmonize and streamline multiple rules.” Where appropriate and feasible, agencies should consider cumulative effects and opportunities for regulatory ha rmonization as part of their analysis of particular rules, and should carefully assess the appropriate content and timing of rules in light of those effects and opportunities. Also, the memorandum reminds agencies that they should choose regulatory approac hes that “maximize net benefits.”

The electric generation industry, including public power or community

- owned utilities, face a host of rigorous new requirements including several Clean Air Act (CAA) regulations, the Coal Combustion Residuals rule (CCR), and the Clean Water Act (CWA) § 316(b) intake aquatic protection fine structure rule (expected by November 2013) and the CO2 regulations for new and existing power plants. The Environmental Protection Agency (EPA) needs to evaluate the cumulative impact of these regulations as part of its assessment of the proposed effluent guidelines rule. The Office of Management and Budget (OMB) guidance and Executive Order 13563 require EPA to consider the cumulative effects of regulations and seek to reduce overlapping and inconsistent requirements.586

Response: The Agency acknowledges and appreciates the comment.

Section 3.7.6

- Financial assurance (35183)

Total Number of Submissions: 13 Total Number of Comments: 14



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03707

- 5 

### Organization 1 

### : Green Century Capital Management 

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

### Comment Excerpt Text:

The financial assurance requirement allows shareholders to better assess this sector’s risk profile. Beyond the TVA spill, the disastrous oil well blowout in the Gulf of Mexico demonstrates that unforeseen accidents can occur that create unpredictably large environmenta l and financial risk for energy companies. We believe it is critical that utilities be required to assure shareholders and the public that they are financially prepared to manage the costs associated with a catastrophic coal ash spill or other ash

- related events that could require significant clean up costs. Without financial assurance, shareholders have no way of assessing which companies in the sector represent a more secure investment.

In response to the TVA spill, several investors filed shareholder pr oposals at utility companies asking those companies to publicly report on efforts being undertaken to reduce environmental and health hazards and financial risks associated with coal ash storage and disposal. These proposals garnered significant shareholde r support, including a 41% vote at MDU Resources Inc. and a 43% vote at CMS Energy. The high votes on these resolutions demonstrate that many shareholders view the coal ash issue as materially relevant to their investments.

We believe regulations that hol d companies accountable to federally

- enforceable standards for safe storage and disposal of coal ash will present meaningful and worthwhile long

- term benefits to our investments, to our economy and to our environment.

Response: The Agency acknowledges an d appreciates the comment, however financial

assurance requirements , as discussed in the proposed rule

, subtitle D option, were not proposed and would be addressed separately in a different action and possibly under CERCLA authority. See75 FR at 35210, Ju ne 21, 2010.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06280

- 35 

### Organization 1 

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

### Commenter 1 : Daphne Neel587

Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.4.9.2 

### Comment Excerpt Text: The Department requests that EPA clarify the interaction of fmancial assurance requirements under Subtitle C and potential impacts to requirements under CERCLA 108(b). Do CERCLA 108(b) requirements supersede RCRA Subtitle C requirements? Will States implement CERCLA 108(b) financial assurance requirements? Response: The Agency acknowledges and appreciates the comment, however financial assurance requirements were not proposed un der the subtitle D option and are not being promulgated under this rule. As discussed in the proposal, if financial assurance is to be addressed for those units affected by this rule it would be in a separate action, possibly under the authority of CERCLA . See75 FR at 35210, June 21, 2010.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 60 

### 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: 4.4.9 

### Comment Excerpt Text: Regardless of the instrument or avenue for financial assurance, it is essential that the financial assurance remain in effect into perpetuity as that is the period during which the disposed CCRs

p ose potential threats to human health and the environment.

Response: The Agency acknowledges and appreciates the comment, however financial assurance requirements were not proposed under the subtitle D option and are not being promulgated under this rule . As discussed in the proposal, if financial assurance is to be addressed for those units affected by this rule it would be in a separate action, possibly under the authority of CERCLA. See75 FR at 35210, June 21, 2010.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06400

- 13 

### 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: 3.5.2.2 

### Comment Excerpt Text:588

Transition rule (CCR Proposal at 35177): EPA states that it is departing from precedent and requiring disposal units that cease receiving new listed or characteristic wastes prior to the effective date of this rule to nevertheless comply with the new requirements. Since Superfund exists precisely in order to address hazards posed by practices that predate new regulations, there is no need to depart from established practice with transition rules, which fairly give the regulated community due process t o modify activities when new obligations are created. There is no suggestion that the affected utilities are bankrupt and unable to assume remedial action if needed. Protection will be assured and regulatory precedent respected if EPA provides for CCR
unit s the same transition rule afforded MSW landfills. For facilities that continue to operate after the effective date of the rule, expansions and new CCR cells should employ the new liner requirements. Groundwater monitoring will assure that existing units w ithout the new liners do not adversely impact surrounding properties and resources.

Response: The Agency acknowledges and appreciates the comment, however financial assurance requirements were not proposed under the subtitle D option and are not being

pr omulgated under this rule. As discussed in the proposal, if financial assurance is to be addressed for those units affected by this rule it would be in a separate action, possibly under the authority of CERCLA. See75 FR at 35210, June 21, 2010.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06410

- 11 

### Organization 1 

### : Commenter 1 : Anonymous Commenter Type: Anonymous
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.4.9.1 

### Comment Excerpt Text:

Financial assu rance is needed for the continued maintenance of the facility during and after operations. Maintenance would be needed to maintain infrastructure integrity. The facility would also need financial assurance for continued environmental monitoring. Other opti ons besides retrofitting can be used to mitigate environmental issues that may arise during or after facility operations. Financial assurance would need to be substantial enough to implement mitigation measures effectively to resolve any environmental issu es.

Response: The Agency acknowledges and appreciates the comment, however financial assurance requirements were not proposed under the subtitle D option and are not being promulgated under this rule. As discussed in the proposal, if financial assurance is to be addressed for those units affected by this rule it would be in a separate action, possibly under the authority of CERCLA. See75 FR at 35210, June 21, 2010.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06410

- 64 

### Organization 1 

### : Commenter 1 : Anonymous589

Com menter Type: Anonymous
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.4.9.1 

### Comment Excerpt Text: Financial assurance is needed by any facility regardless of the regulatory approach. Maintenance
will continue to be needed at facilities after closure.

Response: The Agency acknowledges and appreciates the comment, however financial assurance requirements were not proposed under the subtitle D option and are not being promulgated under this rule. As discussed in the proposal, if financial assurance is to be addressed for those units affected by this rule it would be in a separate action, possibly under the authority of CERCLA. See75 FR at 35210, June 21, 2010.



### Comment 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: 7.3.3 

### 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 existi ng contamination is cleaned up. NMED has demonstrated that it has a strong Subtitle 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 co mpleting their regulatory requirements.

Response: The Agency acknowledges and appreciates the comment, however financial assurance requirements were not proposed under the subtitle D option and are not being promulgated under this rule. As discussed in the proposal, if financial assurance is to be addressed for those units affected by this rule it would be in a separate action, possibly under the authority of CERCLA. See75 FR at 35210, June 21, 2010.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06852

- 10 

### Organization 1 

### : Green Delaware 

### Commenter 1 : Alan Muller590

Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.4.9 

### Comment Excerpt Text:

Financial Assurance

Is inherently required under Subtitle C but not under D.

Response: The Agency acknowledges and appreciates the comment, however financial assurance requirements were not proposed under the subtitle D option and are not being promulgated under this rule. As discussed in the proposal, if financial assurance is to be addressed for those units affected by this rule it would be in a separate action, possibly under the authority of CERCLA. See75 FR at 35210, June 21, 2010.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06876

- 6 

### Or ganization 1 

### : Tennessee Riverkeeper, Inc. 

### Commenter 1 : David Whiteside Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.2.4 3.7.4 3.7.5 3.4.1.4 10.4.1 

### Comment Excerpt Text: The advantages of regulating CCRs under Subtitle C are many. Enforcement is by the state and federal government, not merely by citizen suits. Corrective action as well as closure are monitored by authorized states and EPA, rather than being “self

- im plementing.” Appropriate financial assurances are imposed; permits are required; storage requirements are mandated. Most significantly, the use of surface impoundments to store CCRs will be phased out, ending this huge risk to public health and the environ ment. The beneficial use of encapsulated CCRs can and will continue. Any “stigma” about the continued safe and appropriate use of CCRs can be countered by EPA, the relevant industries and by public information campaigns. In fact, with the “wet” storage of CCRs discontinued, there will be increased opportunities for the beneficial use
of CCRs. Response: The Agency acknowledges and appreciates the comment, however financial assurance requirements were not proposed under the subtitle D option and are not bei ng promulgated under this rule. As discussed in the proposal, if financial assurance is to be addressed for those units affected by this rule it would be in a separate action, possibly under the authority of CERCLA. See75 FR at 35210, June 21, 2010.



### Co mment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08259

- 2 

### Organization 1 

### : Minnesota Center for Environmental Advocacy (MCEA) 

### Commenter 1 : Emily Deering on behalf of Elizabeth Goodpastor591

Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.7.6.2 

### Comment Excerpt Text: In addition one key advantage of the Subtitle C regulatory system. is the financial assurance requirement. When a utility decommissions a coal

- fired power plant

- , and the facility stops producing revenue, the utility will likely face a long tail of landfill and impoundment site closure and post

- closure costs that it will have a strong incentive to avoid. With adequate financial assurance in place, however, the incentives ar e realigned in a positive way: Instead of facing nothing but· deadweight costs, utilities get money back

– they gain revenue

- by doing what is right for the environment and by doing it in a cost

- effective way. At the same time, taxpayers are
assured that th ey will not get stuck with the bill or face the , risk of long

- term environmental degradation.

MCEA does believe Subtitle C's financial assurance rules need updating. The last ten years have shown that balance sheets are easily manipulated and strong co mpanies can go bankrupt virtually overnight, casting serious doubt about "financial tests" or corporate guarantees as adequate financial assurance mechanisms. Nevertheless, MCEA's strong view is that financial assurance is a critical component of any effec tive coal ash regulation and' an important reason why Subtitle. C's approach is the right one for EPA to choose.

Response: The Agency acknowledges and appreciates the comment, however financial assurance requirements were not proposed under the subtitle D option and are not being promulgated under this rule. As discussed in the proposal, if financial assurance is to be addressed for those units affected by this rule it would be in a separate action, possibly under the authority of CERCLA. See75 FR at 352 10, June 21, 2010.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08261

- 4 

### 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: 3.2 3.6 3.7.5 3.7.3 3.4.1.4 3.1.1 

### Comment Excerpt Text: 2.As Hazardous Waste, CCRs should be regulated under Subtitle C of RCRA.

The advantages of regulating CCRs under Subtitle C are many. Enforcement is by the state and federal government, not merely by citizen suits. Corrective action as well as closure are monitored by authorized states and EPA, rather than being “self

- implement ing.” Appropriate financial assurances are imposed; permits are required; storage requirements are mandated. Most592

significantly, the use of surface impoundments to store CCRs will be phased out, ending this huge risk to public health and the environment.

R esponse: The Agency acknowledges and appreciates the comment, however financial assurance requirements were not proposed under the subtitle D option and are not being promulgated under this rule. As discussed in the proposal, if financial assurance is to be addressed for those units affected by this rule it would be in a separate action, possibly under the authority of CERCLA. See75 FR at 35210, June 21, 2010.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08787

- 22 

### 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:
Other Sections: 7.3.1 

### Comment Excerpt Text: If the Subtitle C option is selected, there would be more than 495 additional facilities requiring hazardous waste permits covering active CCR management and disposal, post

- closure care, and facility

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

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

- to

- day tracking of the permit holders' financial instruments to verify continued compliance. The sudden increase in the number of facilities required to obtain financial assurance could also have the secondary effect of driving up the cost of f

inancial instruments for currently permitted facilities, since there would be a spike in demand for letters of credit, insurance, bonds and other acceptable instruments. There is also concern that, given the current condition of financial markets, adequate financial assurance through third parties may simply not be available at a reasonable cost to meet the increased
demand. Response: The Agency acknowledges and appreciates the comment, however financial assurance requirements were not proposed under the s ubtitle D option and are not being promulgated under this rule. As discussed in the proposal, if financial assurance is to be addressed for those units affected by this rule it would be in a separate action, possibly under the authority of CERCLA. See75 FR at 35210, June 21, 2010.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08861

- 4 

### Organization 1 

### : Inter

- Tribal Council of Michigan Inc. 

### Commenter 1 : Robin Clark Commenter Type: Tribal Government
Classification: Substantive Comment Category:593

Current Task: Examine Context Assigned/Due:
Other Sections: 3.2.4 4.2.4 

### Comment Excerpt Text: Risks associated with CCRs necessitate state and federal permit programs that include monitoring, recordkeeping, enforcement, and financial assurance, as required in Subtitl e C. Subtitle C requires facilities to clean up releases of wastes or constituents at the facility and beyond its borders, and demonstrate financial assurance for any obligations or liabilities. Subtitle D's approach of allowing industry to conduct self

- go verned monitoring and corrective action, and leaving enforcement up to citizens and interest groups, is both inadequate and ill

- advised.

Response: The Agency acknowledges and appreciates the comment, however financial assurance requirements were not proposed under the subtitle D option and are not being promulgated under this rule. As discussed in the proposal, if financial assurance is to be addressed for those units affected by this rule it would be in a separate action, possibly under

the authorit y of CERCLA. See75 FR at 35210, June 21, 2010.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09808

- 1 

### Organization 1 

### : Wyoming Outdoor Council 

### Commenter 1 : Bruce Pendery Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Exam ine Context Assigned/Due:
Other Sections: 3.1.1 3.6 3.7.5 3.2 3.5.2 

### Comment Excerpt Text: In the proposed rule, 75 Fed. Reg. 35,128 (June 21, 2010), the EPA says that it is considering two options, for the regulation of CCRs, one proposing to regulate these industrial byproducts as special wastes under subtitle C of the Resource Conservation an d Recovery Act (RCRA); and the other proposing to regulate CCRs under subtitle D of RCRA through the issuance of national minimum criteria. The Wyoming Outdoor Council supports regulation of these dangerous wastes under subtitle C of RCRA, and urges the EP A to adopt this regulatory approach in its final rule.

- Regulation under subtitle C will provide greater assurance that the substantial threats to the environment and public health posed by CCRs will be carefully regulated through a permitting process with the added benefits that enforcement and corrective actions will, be more certain.

Regulation under subtitle C will create a comprehensive program of federally enforceable requirements for waste management and disposal. Regulation under subtitle D only al lows EPA to set performance standards for

- waste management facilities, which as EPA acknowledges are narrower, in scope and would be enforced primarily by those states that choose to adopt coal ash management programs. The Subtitle C option would require t he development of state or federal permit programs, would allow for direct federal enforcement and would, include related storage, manifest, transport, and disposal requirements and mechanisms for corrective action and financial responsibility assurance. T he subtitle D proposal would not be federally enforceable (although citizen’s suits could be filed) and it would not establish the more comprehensive management requirements for CCRs destined for disposal.594

Response: The Agency acknowledges and appreciate s the comment, however financial assurance requirements were not proposed under the subtitle D option and are not being promulgated under this rule. As discussed in the proposal, if financial assurance is to be addressed for those units affected by this r ule it would be in a separate action, possibly under the authority of CERCLA. See75 FR at 35210, June 21, 2010.

Section 3.7.6.1

- EPA seeks comment on how FA requirements might apply to SIs that cease receiving CCRs before effective date of rule (35224)
N o comments are associated with this issue.

Section 3.7.6.2

- EPA seeks comment on whether a financial test similar to that in 40 CFR 258.74(f) in Criteria for MSWLFs should be established for local governments that own and operate coal

- fired power plants (35183, 35224) Total Number of Submissions: 3 Total Number of Comments: 3



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 96 

### 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: 4.4.9.3 

### Comment Excerpt Text: Kentucky has a special waste regulation, at 401 KAR 45:080, that includes coal combustion ash, addressing the situati on:

"Section 9. Financial Assurance for Publicly Owned Facilities. The owner or operator of a publicly owned facility shall provide a budget for the permitting, construction, operation, closure, and postclosure care of the facility. The budget shall be re vised and submitted annually. When elements of the facility's permitting, construction, operation, closure, or postclosure care are to be accomplished by contract or agreement, a copy of the contract or agreement shall be
submitted to the cabinet."

Otherw ise, Kentucky could use the municipal financial test. Response: The Agency acknowledges and appreciates the comment, however the Agency is promulgating a subtitle D rule and this comment is no longer relevant. .



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06410

- 49 

### Organization 1 

### : Commenter 1 : Anonymous Commenter Type: Anonymous
Classification: Substantive595

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



### Comment Excerpt Text: As with any electric utility, costs increase up on the facility will be reflected down to the ratepayer. See Comment #8 for further details on financial assurance of facilities. Establishing
additional criteria for financial assurance should be based on site

- specific characteristics.

Response: The Agency acknowledges and appreciates the comment, however the Agency is promulgating a subtitle D rule and this comment is no longer relevant.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08259

- 2 

### Organization 1 

### : Minnesota Center for Environmental Advocacy (MCEA) 

### C ommenter 1 : Emily Deering on behalf of Elizabeth Goodpastor Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.7.6 

### Comment Excerpt Text: In addition one key advantage of the Subtitle C regulatory system. is the financial assurance requirement. When a utility decommissions a coal

- fired power plant

- , and the facility stops producing revenue, the utility will likely face a long tail of landfill and impoundment site closu re and post

- closure costs that it will have a strong incentive to avoid. With adequate financial assurance in place, however, the incentives are realigned in a positive way: Instead of facing nothing but· deadweight costs, utilities get money back

– they ga in revenue

- by doing what is right for the environment and by doing it in a cost

- effective way. At the same time, taxpayers are assured that they will not get stuck with the bill or face the , risk of long

- term environmental degradation.

MCEA does belie ve Subtitle C's financial assurance rules need updating. The last ten years have shown that balance sheets are easily manipulated and strong companies can go bankrupt virtually overnight, casting serious doubt about "financial tests" or corporate guarantees as adequate financial assurance mechanisms. Nevertheless, MCEA's strong view is that financial assurance is a critical component of any effective coal ash regulation and' an important reason why Subtitle. C's approach is the right one for EPA to choose.

Response: The Agency acknowledges and appreciates the comment, however the Agency is promulgating a subtitle D rule and this comment is no longer relevant.

Section 4.2

- Implementation and Enforcement of Proposed Subtitle D Regulations (35211) Total Number of Submissions: 4 Total Number of Comments: 5596



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 97 

### 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: Having a Subtitle D program that can be administered and implemented by the states is of critical importance. Without it, the regulated community could be subject to multiple and potentially
confl icting CCR regulations which would add to the cost of compliance but would provide no additional protection to human health or the environment.

Response: The Agency acknowledges and appreciates the comment, and the commenter is
referred to Units V and I X of the preamble for discussions as to how this subtitle D rule will be enforced and implemented.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06422

- 25 

### Organization 1 

### : Dynegy Inc 

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



### Comment Excerpt Text: RCRA Subtitle D also provides ample enforcement authority to ensure compliance with CCR
standards. Response: The Agency acknowledges and app reciates the comment, and the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be enforced and implemented.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06422

- 36 

### 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: 4.1.3 

### Comment Excerpt Text: In closing, Dynegy supports the federal regulation of CCRs as non

- hazardous waste. Subtitle D regulation, particularly the Subtitle D Prime approach, as implemented and enforced by the597

States and backstopped by EPA's broad enforcement authority under RCRA § 7003 , citizen suits, and enforcement authorities under othe r federal statutes, would protect human health and the environment without unduly burdening the economy and the coal

- fired electricity generating industry, devastating CCR beneficial uses, or threatening jobs and electric reliability. Response: The Agency acknowledges and appreciates the comment, and the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be enforced and implemented.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06852

- 9 

### Organizat ion 1 

### : Green Delaware 

### Commenter 1 : Alan Muller Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.2.4 

### Comment Excerpt Text:

Enforcement

The opportunities for effective enforcement are much superior under Subtitle C

Response: The Agency acknowledges and appreciates the comment, and the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be enforced and imp lemented.



### Comment Number: TRANS

- DEN

- 0050

- 3 

### Organization 1 

### : Xcel Energy 

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



### Comment Excerpt Text: Our third concern is that EPA's proposal discounts the important role that many states play today. Our states are very active in our landfill and pond operations, with programs that include permits and operating plans, inspections, and requirements for clo sure. State engineers and geologists and hydrologists are in the best position to implement such programs. To avoid duplication, we urge EPA to allow states with effective programs to continue to
administer them under Subtitle D. Federal efforts should fo cus on a few states that may need improvement.598

Response: The Agency acknowledges and appreciates the comment, and the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be enforced and implemented.

Section 4.2.1

- Citizen suits, including states acting as citizens and whether enforcement through citizen suits is adequate (35211) Total Number of Submissions: 33 Total Number of Comments: 39



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 00377

- 2 

### Organization 1 

### : Tennessee Clean Water Network (TCWN) 

### Commenter 1 : Renee V. Hoyos Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.2 

### Comment Excerpt Text: Requiring states to establish guidelines under RCRA Subtitle D is inadequate. Subtitle D defines facilities which fail to follow guidelines as "open dumps," but gives citizens the right to enforce its provisions to prevent open dumps. However, relying on citizens to enforce such immense waste discharges is an insufficient approach. It will leave result in citizen efforts against the massive, well

- funded energy industry instead of meeting the purpose of RCRA, which is to enforce regulations that prevent harm in the fi rst place. It is crucially important regulations be adopted under RCRA Subtitle C instead.

Response: The Agency acknowledges and appreciates the comment, and the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be enforced and implemented.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03303

- 8 

### Organizat ion 1 

### : Unions for Jobs and the Environment (UJAE) 

### Commenter 1 : Bill Cunningham Commenter Type: Union
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Although EPA would not directly enforce the requirements, states or citizens could enforce the requirements under RCRA citizen suit authority. The states could also enforce any state regulation under their independent state enforcement authority. We believe this would result in very effective regul ation since citizens have shown no reluctance to challenge companies that they do not believe are responsibly following environmental regulations.599

Response: The Agency acknowledges and appreciates the comment, and the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be enforced and implemented.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03934

- 7 

### Organizat ion 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: Further, the Subtitle D approach would require citizens sue to prove damages. This leaves citizens to fight for their lives against one of the richest national industries

– an industry that can raise rates to pay for legal fees.

Response: The Agency acknowledges and appreciates the comm ent, and the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be enforced and implemented.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06275

- 25 

### 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: Examine Context Assigned/Due:
Other Sections: 4.2.4 

### Comment Excerpt Text: As EPA point s out in the preamble to the Proposed CCR Rule, EPA lacks direct enforcement authority under the Subtitle D option. Accordingly, EPA’s Subtitle D option proposes an awkward system of CCR landfill location, design and operating requirements that would be

en forced through citizen suits based on information posted to internet web pages. The cost of developing and maintaining this web

- based information tracking system will be significant and will almost certainly be passed on to CCR generators.

Response: The Agency acknowledges and appreciates the comment, and the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be enforced and implemented.600



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06280

- 17 

### Organiza tion 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: 7.4.1 

### Comment Excerpt T ext: 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 revie ws, operating and design requirements, groundwater monitoring, closure and post

- closure requirements, and financial assurance. To attempt to parse through the federal requirements and treat them separately from the state's program is
unworkable for industr y 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 requirem ents through the administrative enforcement process while at the same time proceeding to enforce similar or overlapping requirements through the RCRA 7002 citizen suit provision.

Response: The Agency acknowledges and appreciates the comment, and the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be enforced and implemented.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06280

- 8 

### Organizat ion 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: 7.1.1.4 

### Comment Excerpt Text: The Department's public participation and public notice requirements are far more effective in engaging the community than the proposed "citizen suit" provisions in the proposed Subtitle D regulation. Response: The Agency acknowledges and appreciat es the comment, and the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be enforced and implemented.601



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 83 

### 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: 3.2.1 3.2.2 4.2.2 

### Comment Excerpt Text: It is unreasonable to expect that citizens and State regulators will be able to assure that CCRs are being disposed of in such a way that they will not result in releases which will impact Human
Health and the Environment.

State regulatory agencies have historically been under

- funded, under

- staffed, and under the influence of pressure from legislators and lobbyists for the industries they regulate. The coal combustion industry has ties to and influence over legislators and regulatory agencies that citizen groups are not capable of establishing or maintaining. Thus, in order to obtain effective, uniform enforcement, the regulations must be done under Subtitle C.

Response: The Agency acknowledges and appreciates the comment, and the commenter is
referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be enforced and implemented.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06422

- 27 

### Organization 1 

### : Dynegy Inc 

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



### Comment Excerpt Text: In addition, the citizen suit provisions of RCRA § 7002 enable any person, including states, to bring a civil enfor cement action against any facility alleged to be in violation of Subtitle D requirements. To facilitate such citizen suits, the Proposed CCR Rule would require extensive public notifications and release of CCR facility inspection and monitoring data, as we ll as certifications by qualified professional engineers. Response: The Agency acknowledges and appreciates the comment, and the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be
enforced and i mplemented.602



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06849

- 16 

### Organization 1 

### : Little Village Environmental Justice Organization (LVEJO) 

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



### Comment Excerpt Text: In undertaking this analysis, LVEJO urges U.S. EPA to include one very practical effect of Subtitle C versus Subtitle D regulation of CCR. Under Subtitle D, the basic enforcement
mechanism to address n on

- compliance is a RCRA citizen suit. Shifting the burden of enforcement to small community

- based organizations like LVEJO suggests Subtitle D will be, as a practical matter, unenforced in thousands of neighborhoods where environmental legal and
technical services are unavailable or difficult to obtain. Response: The Agency acknowledges and appreciates the comment, and the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be enforced and implemented.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07395

- 18 

### 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:

D. EPA Should No t Rely Upon Citizen Suit Enforcement of Subtitle D Regulations as a Regulatory Underpinning of this Rule

EPA has proposed rigorous internet disclosure requirements and citizen suits as a means to enforce the Subtitle D regulations. Again, EPA's foundation for relying on citizen suits is on the belief that state programs are inadequate and EPA does not have authority to require the states to implement a Subtitle D program. While the TCCPC believes this has been disproven above, the
TCCPC must still comment on the current option emphasizing citizen suits.

Fundamentally, lawsuits are not an effective means of regulation. First, lawsuits are reactive, not proactive. The TCCPC believes it is clear that the coal

- fired electric generation industry has taken proac tive measures to handling and disposing of CCRs. More importantly, the risk of lawsuits, for even perceived and unproven iolation would be crippling. Smart proactive regulation, enforced by state regulators who are familiar with the regulated industries, i s the only way to effectively and efficiently regulate industry603

Response: The Agency acknowledges and appreciates the comment, and the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be enforced and implemented.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08211

- 21 

### Organiza tion 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: 3.2.3 4.2.5 

### Comment Excerpt Text: The NDDoH believes that the whole crux of the selection of the Subtitle C or D options comes down to enforcement. Will direct enforcement authority by EPA be absolutely necessary, or will enforcement by states and citizens be adequately protective? The maj ority of states have applicable solid waste regulations that can be enforced by the state.

In the states that do not have regulations regarding CCRs, the imminent hazard enforcement authority currently included in RCRA provides EPA with a mechanism for e nforcement short of creating a new set of regulations for CCRs under Subtitle C. An EPA enforcement training document, found online at www.epa. gov/osw/inforesources/pubs/hotline/training/enforc.pdf, states the following:

"Section 7003 gives EPA a broad and powerful enforcement tool to use in abating imminent hazards caused by hazardous or solid wastes. RCRA §7003 states that upon receipt of evidence that the past or present handling, storage, treatment, transportation, or disposal of any solid waste
or h azardous waste may present imminent and substantial endangerment to human health or the environment, EPA may bring suit against any person who has contributed or who is contributing to the handling of the waste to restrain the person, order the person to t ake any action that may be necessary, or both. The action taken by EPA may be administrative or civil. To issue a §7003 order, EPA must possess evidence that the waste handling may present an imminent and substantial endangerment to human health or the env ironment. Evidence may be documentary, testimonial, or physical and may be obtained from a variety of sources, including inspections, investigations, or requests for production of documents or other data pursuant to §§3007, 3013, or the Comprehensive Envir onmental Response, Compensation, and Liability Act (CERCLA) §104. This evidence must be reliable enough to enable a reasonable person to conclude that the action is appropriate. The phrase "may present" indicates that the standard of proof does not require certainty. That is, an order may be issued if there is sound reason to believe that an endangerment exists; evidence of actual harm is not required."

Therefore, by EPA's own assessment and interpretation of current RCRA rules, it is not necessary to imp lement the Subtitle C option for EPA to have direct enforcement authority for CCR damage cases.604

Response: The Agency acknowledges and appreciates the comment, and the commenter is referred to Units V and IX of the preamble for discussions as to how this s ubtitle D rule will be enforced and implemented.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 23 

### Organization 1 

### : Ohio Environmental Protection Agency 

### Commenter 1 : Chris Korleski Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.2 4.2.4 4.5 

### Comment Excerpt Text: Specifically, Ohio EPA urges U.S. EPA to reexamine the legal interpretation on existing authority or seek appropriate authority to adopt rules for the U.S. EPA approval of state CCR permit programs modeled after the highly successful Title 40 Part 239: Requirements for State Permit Program Determination of Adequacy. The Title 40 Part 239 approach would ensure that states with U.S. EPA approved permit programs have direct state enforcement authority in addition to the citizen suit enforcement authority. It also clarifies that an owner or operator of a CCR disposal facility is not obligated to follow the RCRA subtitle D federal rules if that owner or operator ha s obtained and complies with an approved state issued CCR disposal facility permit. This avoidance of duplicative regulation is a significant “carrot” for both industry and state government to seek U.S. EPA state permit program approval. For over a decade (1999), this approach has successfully ensured state permitting of MSW landfills consistent with minimum national standards. This Title 40 Part 239 approach is widely accepted by the states with the vast majority having obtained U.S. EPA approval of their state permit programs. It should be noted that this has been accomplished by states without the aid of any federal funding.

Response: The Agency acknowledges and appreciates the comment, and the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 24 

### Organization 1 

### : Ohio Environmental Protection Agency 

### Commenter 1 : Chris Korleski Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.3.1 

### Comment Excerpt Text: The proposed RCRA subtitle D approach is appropriate to establish national minimum standards.605

The requirements are sufficiently clear and unambiguous. The requirements that owners or operators of CCR disposal facilities maintain independently reviewed documentation of compliance on publically available websites and provide notice to the state environmental agency ensures public access. 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. This is much improved over the existing 40 CFR part 257: Criteria for
Classi fication of Solid Waste Disposal Facilities and Practices. Unlike the existing 40 CFR part 257 requirements which are too ambiguous and don’t require the owner or operator to document compliance; the proposed RCRA subtitle D rules are actually useful towar ds developing a citizen
suit. Response: The Agency acknowledges and appreciates the comment, and the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 5 

### Organization 1 

### : Ohio Environmental Protection Agency 

### Commenter 1 : Chris Korleski Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.2 4.2.4 4.5 

### Comment Excerpt Text: Ohio EPA acknowledges U.S. EPA and citizens' concerns regarding the reliance of RCRA subtitle D on citizen suit enforcement authority. Specifically, Ohio EPA urges U.S. EPA to reexamine the legal interpretation on existing enforcement authority to adopt rules for the U.S. EPA approval of state CCR permit programs modeled after the highly successful Title 40 Part 239: Requirements for State Permit Program Determination of Adequacy. The Title 40 Part 239 approach woul d ensure that states with U.S. EPA approved permit programs have direct state enforcement authority in addition to citizen suit enforcement authority. It also clarifies that an owner or operator of a CCR disposal facility is not obligated to follow the RCR A subtitle D federal rules if that owner or operator has obtained and complies with an approved state issued CCR disposal facility permit. This avoidance of duplicative regulation is a significant "carrot" for both industry and state government to seek U.S . EPA state permit program approval. For over a decade (1999), this approach has successfully ensured state permitting and state enforcement authority for MSW landfills consistent with minimum national standards. This Title 40 Part 239 approach is widely a ccepted by the states with the vast majority having obtained U.S. EPA approval of their state permit programs. I note that this has been accomplished by states without the aid of any federal funding.

Response: The Agency acknowledges and appreciates the comment, and the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced.606



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 6 

### Organization 1 

### : Ohio Environmental Protection Agency 

### Co mmenter 1 : Chris Korleski Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.3.1 

### Comment Excerpt Text: If the authority to approve state CCR disposal facility permitting programs is not possible, Ohio EPA notes that the proposed RCRA subtitle D requirements are clear and unambiguous. The requirements that owners or operators of CCR disposal facilities maint ain independently reviewed documentation of compliance on publically available web sites and provide notice to the state environmental agency ensures public access. These requirements establish a substantial
basis for both citizens and those states without equivalent state requirements to successfully enforce under RCRA citizen suit authority. This is much improved over the existing 40 CFR part 257: Criteria for Classification of Solid Waste Disposal Facilities and Practices. Unlike the existing 40 CFR part 257 requirements, which are too ambiguous and don't 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 com ment, and the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced.



### 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 Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 7.4.1 

### Comment Excerpt Text: EPA's proposal r aises 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 c itizen 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 independently607

reviewed documentation of compliance on publically availabl e 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 sui t 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 ope rator 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, and the commenter is referred to Units V and IX of the preamble for di scussions as to how this subtitle D rule will be implemented and enforced.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09276

- 6 

### Organization 1 

### : National Concrete Masonry Association (NCMA) 

### Commenter 1 : Robert D. Thomas Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: e. Responsibility for Proper Handling and Use of Fly Ash is not Relieved under Subtitle D Regulation. Any waste disposal process can be abuse d. State and local jurisdictions will continue to regulate disposal sites, transportation and processing of waste materials, and public health. Citizens will still have the right to pursue lawsuits and other legal remedies for perceived or
actual abuses. P ast fly ash spills and endangerments do not rise to the level of requiring higher regulation than Subtitle D. Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09281

- 14 

### Organization 1 

### : Exelon Power 

### Commenter 1 : Victoria K. Will Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.5 

### Comment Excerpt Text: 3. The federal enforcement authorities available under Subtitle C do not provide the only mechanism for assuring effective CCR program implementation.

Exelon shares EPA’ s concern that the lack of federal enforcement authority could compromise608

Subtitle D enforcement. However, CCR facility operators have a number of other incentives to comply with Subtitle D regulations, including: (i) the possibility of state and thirdparty litigation (for both regulatory compliance and actual damages), especially with ea sily accessible compliance information open to public scrutiny; (ii) requirements of investors, lenders and insurers to comply with environmental requirements; [footnote 2: Investors and lenders typically condition capital investments and loans on environm ental compliance. Refusing to agree to such a conirnitment could result in lack of funding. Similarly, environmental insurance policies invariably exclude damage claims arising from non

- compliances from covered events] and (iii) typical corporate policies in this frequently

- regulated industry sector which call for environmental compliance as a standard operating procedure.

Moreover, EPA is not without any enforcement authority related to environmental damage associated with or resulting from CCR disposal. To the contrary, EPA has authority to ameliorate threats of immediate and substantial endangerment to health or the environment arising from the disposal of CCR under RCRA. See 42 U.S.C. § 6973. While this authority does not include the ability to address each and every minor instance of non

- compliance with the regulatory requirements that would be imposed under Subtitle D, it allows the Agency to address significant
instances of non

- compliance that pose imminent and substantial threats to the public or th e environment. Thus, EPA would still have an important role within the Subtitle D framework in protecting the public from waste management and disposal practices that pose a significant
demonstrated health risk.

EPA can also invoke enforcement authority under other relevant statutory programs. EPA can enforce violations of the clean Water Act under 33 U.S.C. § 1319 if CCR are improperly discharged to surface water or otherwise discharged in violation of an NPDES permit condition. As impoundments are frequ ently located near surface waters and often discharge to them pursuant to a state

- issued NPDES permit, the potential for the clean Water Act to serve as an enforcement tool is far from academic. In addition, the Office of Surface Mining Reclamation
and Enf orcement may also be able to initiate an enforcement action if a state fails to take appropriate action if a beneficial use application of CCR in an active or abandoned mine leads to a violation of the Surface Mining control and Reclamation Act. See genera lly 30 U.S.C. § 1271.

Response: The Agency acknowledges and appreciates the comment, and the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09633

- 11 

### Organization 1 

### : Waterkeeper Alliance 

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



### Comment Excerpt Text:609

D. Regulation Under Subtitle D Would Be Against Public Policy

In the preamble to the current proposed rule, EPA states that, under Subtitle D, regulation requirements could not be enforced by EPA but only through state or citizen suits. [Footnote 81:
EPA Proposed Rule, p. 43] Given the hardship already borne by citizens that have had to deal with health risks, contaminated water sources, and/or environmental destruction due to the presence of coal ash in their communities, it would be highly unreasonable, and against public policy, for EPA to place the further burden of enforcement on them as well. It is EPA’s duty to make sure that “federal laws protecting human health and the environment are enforced fairly and effectively...[.]” [Footnote 82: EPA websit e, Our Mission and What We Do, available at: http://www.epa.gov/aboutepa/whatwedo.html] Citizen suits are a necessary supplement to making these laws work, but should not be the sole means of enforcement. In short, EPA cannot rely on the public citizens to do its job.

Moreover, the fact that enforcement would most likely not occur until after the relevant damage had already been done also violates public policy. Communities deserve legal protection from this type of pollution before it happens, not just m onetary damages afterwards, which often fail to fully compensate parties anyway. Otherwise, companies might be encouraged to “pay to pollute,” in situations where the cost of paying damages is less than the cost reform its practices.
Federal enforcement of regulation requirements under Subtitle C will help to ensure a swift response to problems before they have a chance to get out of hand.

Response: The Agency acknowledges and appreciates the comment, and the commenter is
referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced.



### 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: 3.1.1 7.1 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 addressed the root of the problem, which is the fact that the ponds are lea king 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 f or the State of Montana, leaving our members610

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 work for the future years. On the other hand, Subtitle C regulations wou ld 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 ind ustry'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 increase approved beneficial uses. It is time for industry to stop passi ng 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, and the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10538

- 10 

### Organization 1 

### : Commenter 1 : Raymond von Drehle Commenter Type: Private Citizen
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.2 

### Comment Excerpt Text: Another problem with regulating coal ash and CCR as a non

- hazardous waste is that the regulations would not be directly federally enforceable. State regulators are often unduly
in fluenced by large public utilities and if the state fails to adopt and enforce adequate regulations the only viable way of protecting public health and the environment is through citizen suits, which is a wholly untenable way to regulate over 150 million t ons of toxic ash in nearly 50

states. Response: The Agency acknowledges and appreciates the comment, and the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10602_DC

- 016

- 6 

### Organization 1 

### : Unions for Jobs and the Environment (UJAE) 

### Commenter 1 : Bill Cunningham Commenter Type: Union
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:611



### Comment Excerpt Text: Although EPA would not directly enforce the requirements, states or citizens could enforce the requirements under RCRA citizen suit authority. The states could also enforce any state regulation under their independent state enforcemen t authority. We believe this would result in very effective regulation since citizens have shown no reluctance to challenge companies that they do not believe are responsibly following environmental regulations.

Response: The Agency acknowledges and appr eciates the comment, and the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10684_DC

- 072

- 1 

### Organization 1 

### : Sierra Club


### Commenter 1 : Margaret Hoerath Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.1 4.2.4 

### Comment Excerpt Text: The status of coal ash regulation is a patchwork, unreliable sy stem which varies state to state. This system does not adequately handle coal ash waste and often results in coal ash ponds that leak toxins. Subtitle C will change this, protecting public health. Federally enforceable standards, upheld by the EPA, are wha t we need. Citizen lawsuits, which are long, drawn out and hard for affected communities to afford, would be the only mode of enforcement under the weaker Subtitle D. Please support Subtitle C which will phase out coal ash ponds, and will effectively
prote ct individual’s and communitie’s health and well

- being.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10734_DEN

- 046

- 1 

### Organization 1 

### : Colorado Interfaith Power and Light 

### Commenter 1 : Betty Goebel Commenter Type: Community/Religious/Social Organization
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 9.2.3 3.1.1 

### Comment Excerpt Text: In addition to concern about the environment, faith tradi tions also share a concern for the poor. Today I speak for the poor, who will surely be underrepresented here. The EPA's own data shows that over half of the coal ash storage locations are in areas which are predominantly low
income. Low income areas have long been the dumping ground for toxic wastes and the poor612

have suffered disproportionately from related health hazards.

Subtitle D lacks any meaningful enforcement mechanism. The burden is on the citizen to bring suit when the industry doesn't adhere to recommended standards. This puts an unacceptable burden on low income victims of coal ash health problems. These are the people least likely to mount a serious challenge to the industry. Low income people are often less well

- educated, have
less access to P C and internet technology, less knowledge of how to access and interpret environmental data, and the least likely to have resources for a time consuming legal battle. When you are working two or three jobs to put food on the table, it is hard to muster the energy you need to organize an effective challenge to a powerful industry, even when you know that something is making you, your children and your neighbors sick.

If the industry is looking for a group of people least likely to challenge them, they have the right population when their storage sites are in low income areas. Many instances of contamination make it clear: This industry has been unable police itself and neither have state governments. I urge the EPA to adopt Subtitle C. If the industry truly believes that coal ash is non

- hazardous, I suggest that it be trucked to the backyards of its executives. And may that give new meaning to the scriptural command to "love our neighbors."

Response: The Agency acknowledges and appreciates the comment, the commenter is also referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10747_DEN

- 059

- 2 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG) 

### Commenter 1 : Jim Roewer Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.5 

### Comment Excerpt Text: Opponents to the Subtitle D option persist on incorrectly stat ing that this would merely preserve the status quo under which EPA could only issue "guidance." This is not correct. Under the Subtitle D option, EPA would issue federal regulations specifically designed for CCR disposal units. These regulations would be d irectly enforceable by the states and the public under RCRA's citizen suit provision and violators would be subject to significant civil penalties. EPA would also retain its imminent and substantial endangerment authority to take action against any CCR
uni ts that posed a risk to human health or the environment. Ask any utility that has been the subject of a RCRA citizen suit, with injunctive relief and civil penalties in the balance, whether it views these regulations as mere "guidance." These are real regu lations with teeth and it is misleading to suggest otherwise.613

Response: The Agency acknowledges and appreciates the comment, the commenter is also referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced.



### 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: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 7.1 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
enfor cement 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 state 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 requirement. EPA is also proposing the extensive public
release of C CR 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 substantial endangerment to health or the environment". The
thresho ld 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 M ining under the federal Surface Mining Reclamation and Enforcement Act.

Response: The Agency acknowledges and appreciates the comment, the commenter is also referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10771_DA

- 002

- 4 

### Organization 1 

### : Dynegy Inc. 

### Commenter 1 : Linda Whelan Commenter Type: Electric Utility Company614

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.5 4.2.5 

### Comment Excerpt Text: Dynegy supports the federal regulation of CCRs as nonhazardous waste. Subtitle D regulations implemented and enforced by the States

- as backstopped by EPA's broad enforcement authority
under R CRA § 7003, RCRA's citizen suit provisions, and authorities under the other federal

statutes

-- would protect human health and the environment in a manner equivalent to Subtitle C regulation, but without unduly burdening the economy or threatening jobs and electric reliability.

Response: The Agency acknowledges and appreciates the comment, the commenter is also referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11027_CHA

- 062

- 1 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG) 

### Commenter 1 : Pat McCable Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sect ions: 4.1.3 4.5.1 4.2.5 

### Comment Excerpt Text: USWAG supports the "Subtitle D Prime" option, with appropriate adjustments, because of the options presented by EPA this is the one that best balances clean energy with affordability and reliability. USWAG sha res EPA's objective of having a federal regulatory program that ensures the safe disposal of CCRs; the "D Prime" option will meet this objective.

Opponents of a Subtitle D option persist on incorrectly stating that this would merely preserve the status q uo under which EPA could only issue "guidance." This is not the case. Under a Subtitle D option, EPA would issue federal regulations specifically designed for CCR disposal units. These regulations would be directly enforceable by the states and the public under RCRA's citizen suit provision. EPA would also retain its imminent and substantial endangerment authority to take action against any CCR unit that posed a risk to human health or the
environment.

We agree that disposal units that are not fully protec tive must either be upgraded or closed; however, there are many CCR surface impoundments which are perfectly safe. The "D Prime" option will allow for development of a regulatory program that meets both of these objectives.

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 regulations. Clearly, there are state regulatory programs that already meet or exceed the proposed Subtitle D standards. States with615

qualified p rograms should be given the option of administering the federal Subtitle D rules if they so desire.

Response: The Agency acknowledges and appreciates the comment, the commenter is also referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11284_CHI

- 058

- 1 

### Organization 1 

### : Commenter 1 : Susan Michetti Commenter Type: Private Citizen
Classification: Substantive Comment Category:
Current Task: Examine Con text Assigned/Due:
Other Sections: 4.1.2 6.1.1 7.1.1 3.1.1 

### Comment Excerpt Text: Coal ash needs classification as a listed toxic substance to be regulated under RCRA Subtitle C with a comprehensive program with federally enforceable requirements, as a minimum requirement, not thru citizen suits that require deep pockets and bankruptcy. The coal industry outrageously brags that they meet the standards while contaminating drinking water in Wisconsin so that Caledonia requires bottled water.

Since voluntary industry self

- regulation is beyond failed, industry corporations must be held
fin ancially accountable for all external testing and costs and cleanup

- not the individual victims of these unfair, unethical externalities of their costs of doing business. Subtitle C as a comprehensive program of federally enforceable requirements is the on ly acceptable option with some corporate accountability. If adequate enforcement occurs by [words illegible]. The long overdue precautionary principle must become part of this equation before any real accountability shifts to industry burdens and costs bac k to their source

- instead of unfairly on victims. The Wisconsin DNR is politically driver agency. The public wants wind and solar

- not coal. By definition, limited legal liability of coal in Wis. indicates serious hazards and risks [word illegible] for the public.

Coal ash concentrates arsenic, cadmium, and mercury. In Wisconsin, coal ash is dumped into gravel pits and spread on farm fields, which, in turn, leached into our ground water.

Coal is not cheap. The costs are transferred to public through envi ronmental pollution and adverse health effects. Innocent victims are harmed and absorb coal’s external uncounted costs of doing business. Subtitle D option is unacceptable as it further shifts the unfair costs of
externalities to victims when it should be paid honestly as a cost of doing business. Industry must start paying 100% costs of doing business

- not victims.

Response: The Agency acknowledges and appreciates the comment, the commenter is also referred to Units V and IX of the preamble for discussio ns as to how this subtitle D rule will be implemented and enforced.616



### 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: 4.1.2 7.1 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 aut hority; the states could also enforce any state regulation under their independent state enforcement authority." Leaving the burden of initiating enforcement actions to state agencies and citizens would be an abrogation of EPA's duty to protect the environ ment 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 contamination caused by coal combustion waste beneath every plant ... studied. For many sites, contamination is intensifying as CCW continues to build up in ponds and landf

ills. 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 con tinued to permit new ponds and landfills without proper controls. 3. Kentucky is not comprehensively tracking where CCW contamination is going, putting offsite drinking water and communities at risk and allowing CCW discharges to enter our rivers and

stre ams. 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 com bustion 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 neighborhood s in Louisville617

or if EKPC's Spurlock facility "discharges to three receiving streams that flow into the Ohio River" and that it has "contaminated underlying groundwater since at least 2005 with arsenic, iron, sulfate and IDS exceeding MCLs and SMCLs," wit h 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: L ack Of Federal Coal Ash Regulations Endangers Americans And Their Environmen t ). This title says 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 p rovide that regulation. Please put forward a strong,
enforceable rule.

Response: The Agency acknowledges and appreciates the comment, the commenter is also referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be

i mplemented and enforced.



### Comment Number: TRANS

- ARL

- 0008

- 1 

### Organization 1 

### : Commenter 1 : John Robertson Commenter Type: Law Firm
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.1 

### Comment Excerpt Text: The industries that are speaking to you to ask for regulation under Subtitle D are able to afford hundreds of attorneys. They are able to afford millions of dollars. The citizens in Giles County are able to afford me. Citizen suits are going to be v ery difficult under Subtitle D. They will be outgunned, they will be outmanned, and they will likely be done in by the war of attrition. We would ask for Subtitle C to cover coal combustion waste because, as Mr. McGrath had indicated, the way that the Cum berland Park Project is currently structured is not a beneficial use, and it's something that the EPA has recognized under any regulation would not be recognized as a beneficial use. Unfortunately, the patchwork of regulation between the states
would have one state regulating the type of project that Giles County has as a hazardous waste dump and requiring monitoring, permitting, lining; whereas in our neck of the woods, you have an unlined site next to a source of drinking water for communities that live d ownriver. That's something that should not be permitted to occur.

Response: The Agency acknowledges and appreciates the comment, the commenter is also referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced.



### Comment Number: TRANS

- ARL

- 0008

- 3 

### Organization 1 

### :618



### Commenter 1 : John Robertson Commenter Type: Law Firm
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: We believe that the only way that this problem can be controlled is by regulation under Subtitle C. It would be the only tool that citizens, like the citizens of Giles County, would be able to have as opposed to pooling their resources to hire one attorney as opposed to the industry that's able to afford an entire firm of attorneys.

Response: The Agency acknowledges and appreciates the comment, the commenter is also referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced.



### Comment Number: TRANS

- CHI

- 0043

- 2 

### Organization 1 

### : Commenter 1 : Aaron Turkewitz Commenter Type: Private Citizen
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.1 4.2.4 

### Comment Excerpt Text: Given this reality, it is clear to me that the EPA should and must adopt the strongest possible regulations to contain the toxins in coal ash. To begin with, coal ash should be regulated from cradle to grave. Many of the conditions in Subtitle D are inappropriate for dealing with hazardous waste. Both logic and history argue that it is unrealistic to expect an industry to police
itself. Similarly, private citizen driven lawsuits, to expect private citizen driven lawsuits to be an effective counterbalance to industry power is unrealistic. While David and Goliath may be an appealing story, it's not a good model for ensuring the changes that are required to safeguard human and environmental health. For this reason, the regula tions and the enforcement must
come from the federal level. The current patchwork of state regulations are weak. Many states fail to require even basic safeguards such as adequate monitoring. State

- based regulations and enforcement are also inappropriate because unless rules are changed, coal ash and coal ash polluted groundwater don't actually respect state boundaries. I want the environment in which I and my neighbors live to be cleaner and healthier. I want the
environment that children inherit to be c leaner still. The EPA is the right agency to take the lead and I hope it will adopt provisions at least as strong and binding as those in Subtitle D with regard to coal ash.619

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion as to why the Agency has chosen to regulate CCR under subtit le D of RCRA.



### Comment Number: TRANS

- CHI

- 0065

- 1 

### Organization 1 

### : Peoria Families Against Toxic Waste 

### Commenter 1 : Joyce Harant Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.1 

### Comment Excerpt Text: We do support the regulation by Subtitle C of your options. I have three points that I hope I will have time to make. When I read in your website the description for Subtitle D option regarding enforcement, Subt itle D enforcement through citizen suits, states can act as citizens. I had a quite visceral and negative reaction that I will not share with you this afternoon. The thought that my government who is proposing this regulation because it knows that coal ash is not currently being stored in a manner that protects the public's health and safety, that you would even offer us an option that we should rely on citizen suits to protect us is ludicrous. I'd like to ask you, have any of you been involved in trying t o promote environmental safety as part of a grassroots citizens group? By the way, have you documented just where these citizen activists are located? Do we live in every location that needs monitoring? Do these regulations give us any authority to investi gate access to funds to monitor sites, any funds to fight these wealthy corporations in court? I did not see that in the regulations. If you ever had to face these wealthy corporations in public hearings and could not afford the professional testimony tha t you need, you would never suggest citizen enforcement. Have you ever had to fight a wealthy corporation in court without having government attorneys on your side? Have you ever worked with seven other people for six hours at 90 degrees at a ball game
sel ling hotdogs just to make $300 to pay your attorney? I am currently a plaintiff in a lawsuit in the Third Appellate District in Illinois regarding Electric Arc Furnace Test. I can tell you that when our single, poorly paid but dedicated attorney faced
the five attorneys supporting the hazardous waste company, you know it's not a fair fight. So, I repeat, do not rely on citizen suits for enforcement.
The idea of citizen enforcement is like "don't ask don't tell." Don't ask don't tell the coal ash producing companies because if there doesn't happen to be a well educated, informed and financed citizen activist in the community, we surely know that the wealthy corporations won't tell about their pollution. I would also like to express caution in how the coal ash is determined to be able to be used in a

so

- called safe manner. In Peoria, we have one of the highest lead contamination of homes and lead poisoning in children. And we need to make sure that any so

- called safe use has thorough testing and long

- term te sting so that this is not coming out in dust into the water after demolition
of homes or however it is used. And lastly, I believe we must have universal rules throughout this country to control coal ash620

waste. If I live in a progressive state, it really doesn't matter because the state next door can be inadequate and I'm still at risk

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule wi ll be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion as to the methodology EPA used to determine that subtitle D of RCRA was appropriate for the regulation of CCR.



### Comment Number: TRANS

- CHI

- 0110

- 1 

### Organization 1 

### : Commenter 1 : Susan Michetti Commenter Type: Private Citizen
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.4 

### Comment Excerpt Text:

Coal ash needs classification as a listed toxi c substance to be regulated under RCRA Subtitle C with a comprehensive program with federally enforceable requirements as a minimum, not through citizen suits that require deep pockets and will bring bankruptcy to those citizens. The coal industry outrageo usly brags they meet the standards while contaminating the drinking water in Wisconsin, so Caledonia has to have bottled water. Since voluntary industry self

regulation is beyond failed, industry corporations must be held financially accountable for all

ex ternal cost including testing and cleanup, not paid by individual victims of these unfair, unethical externalities of their costs of doing business.

Response: The Agency acknowledges and appreciates the comment, the commenter is
referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion as to the methodology EPA used to determine that subtitle D of RCRA was appropriate for the regulation of CCR.



### Comment Number: TRANS

- CLT

- 0068

- 1 

### Organization 1 

### : Southern Alliance for Clean Energy 

### Commenter 1 : Jennifer Rennick Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/D ue: Other Sections: 3.1.1 

### Comment Excerpt Text: My name is Jennifer Rennick, and I am the federal policy director for a regional nonprofit621

organization called the Southern Alliance for Clean Energy. I am also the mother of two young children, and I am a concerned citizen. And I'm very pleased to have th e opportunity to speak today in support of the Subtitle C designation for coal ash under the Resource Conservation and Recovery Act. In my professional capacity, I track how our federal legislative and regulatory systems make and
enforce laws in this coun try. And I've had the opportunity first hand to see time and time again why voluntary measures, such as those that would result from the Subtitle D option, simply do not work; particularly not when we're speaking about for

- profit ventures. Unless this indu stry is required by law to follow particular guidelines, there is no guarantee that public health and safety will be assured. In fact, regulating coal ash, which, as we've heard several times today, contains, among other substances, lead, mercury, cadmium, chromium

-- to regulate this in the same category as banana peels, soda cans and other household waste is truly unthinkable to me, particularly as a mother. And I don't believe that citizens should have to sue after the fact for compensation or
remediati on in the event of another coal ash disaster, such as what happened in Harriman,
Tennessee in December of 2008. And I do believe the correct word there is "when" we have another coal ash disaster, and not "if." We should have the strongest public health p rotections from the start, and I believe that establishing the long overdue and robust standards that would result from a Subtitle C designation will help ensure that we have the best protections for our water, our air, and our
children's future. I do not believe that environmental protection is a luxury as some utility spokespersons have suggested. I believe that these are fundamental rights and rights that we all have a shared responsibility to protect. And I trust and hope that the EPA is going to do th e right thing at the conclusion of this hearing process and recommend a Subtitle D (sic) designation.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how thi s subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion as to the methodology EPA used to determine that subtitle D of RCRA was appropriate for the regulation of CCR.



### Comment Number: TRA NS

- DAL

- 0017

- 2 

### Organization 1 

### : Dynegy 

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



### Comment Excerpt Text: The EPA 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. First, most states already have robust regulatory pr ograms that apply to CCR management. Many states are likely to adopt Subtitle D requirements. Even in the absence622

of a state program, CCR facilities must meet Subtitle D requirements. They are not optional, unenforceable guidelines. Two, RCRA Section 7002 requires that any person, including states, can bring a civil enforcement action against any facility for violating any Subtitle D requirement. EPA has also proposed the extensive public release of CCR inspection and monitoring data to further enable
this provision. Three, under RCRA 7003, EPA can also enforce Subtitle D requirements whenever a CCR facility may present an imminent and substantial danger to health or the environment. The threshold for EPA to abuse this authority is low as the courts have i nterpreted RCRA 7003 broadly. And four, 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 and Reclamation Enforcemen t Act.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion as to the methodology EPA used to determine that subtitle D of RCRA was appropriate for the regulation of CCR.



### Comment Number: TRANS

- DEN

- 0030

- 1 

### Organization 1 

### : Colorado Interfaith Power and Light 

### Commenter 1 : Joy Jamison Commenter Type: Community/Religious/Social Organization
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 9.2.3 

### Comment Excerpt Text:

This is a moral and eco

-

justice issue. Coal ash disproportionat ely affects the poor. Right here in Denver in the Elyria neighborhood next to Xcel's Cherokee plant, Xcel parks railroad cars full of coal ash right across the street from private housing. According to the EPA's own statistics, 52 percent of coal ash sites have higher than average low

income families and 28 percent have higher than average minority populations. If coal ash is not regulated, the only recourse for individuals in these communities is citizen suits. No one there
can afford to sue.

Response: Th e Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a

dis cussion as to the methodology EPA used to determine that subtitle D of RCRA was appropriate for the regulation of CCR.623



### 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 7.1 

### 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 s upporting 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 C option gives us th at. 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 longe r 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 environmental threats from the booming natural gas drilling industry. Our Department of Environmental Protection does not have the necessary resources to protect us from those danger s let alone do what is necessary to regulate coal ash. Clean Water Action supports strong federal regulations on coal
ash. Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for disc ussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion as to the methodology EPA used to determine that subtitle D of RCRA was appropriate for the regulation of CCR.

Section 4.2.2

- State enforcement provisions are needed beyond citizen suits Total Number of Submissions: 51 Total Number of Comments: 87



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 00377

- 2 

### Organization 1 

### : Tennessee Clean Water Network (TCWN) 

### Commenter 1 : Renee V . Hoyos Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.1 

### Comment Excerpt Text: Requiring states to establish guidelines under RCRA Subtitle D is inadequate. Subtitle D defines facilities which fail to follow guidelines as "open dumps," but gives citizens the right to enforce624

its provisions to prevent open dumps. However, relying on citizens to enforce such immense waste discharges is an insufficient approach. It will leave result in citizen efforts against the massive, well

- funded energy industry instead of meeting the purpose of RCRA, which is to enforce regulations that prevent harm in the first place. It is crucially important regulations be adopted under RC RA Subtitle C instead.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion as to the methodology EPA used to determine that subtitle D of RCRA was appropriate for the regulation of CCR.



### 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: 7.1 4.1.1 

### Comment Excerpt Text: For example, Xcel Energy, one of the larger power corporations in the United States, already 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. The 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 impoundme nts 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 l eaves 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.



### 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 4.4.5.2.1 7.1.1.3 7.1.2.5 10.4.2625



### Comment E xcerpt Text: In response to, the request, for comments and as a Professional 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

- c haracterized 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 landfills 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 th an MSW or other waste types.

5. States should be encouraged to amend their 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 com ment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 05906

- 3 

### Organization 1 

### : Associated Electric Cooperative, Inc. (AECI) 

### Commenter 1 : Brent Ross Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 11.2.5 

### Comment Excerpt Text: The State of Missouri Natural Resources Department regulates CCR waste disposal and maintains a rigorous compliance program tailored after the Federal Subtitle D regulatory framework. This regula tory program meets and even exceeds Subtitle D requirements and, therefore, should continue to administer the CCR disposal program should Subtitle D regulations
be enacted. Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of R CRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06018

- 1 

### Organization 1 

### : Indiana Department of Environmental Management (IDEM) 

### Commenter 1 : Thomas W. Easterly626

Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Con text Assigned/Due:
Other Sections: 4.5 

### Comment Excerpt Text: The Environmental Protection Agency (EPA) draft rule offers two options for regulating disposal of CCRs: a RCRA Subtitle D approach (self

- implemented), and a RCRA Subtitle C approach.
IDEM care fully considered these two approaches in light of Indiana's current regulatory framework for CCRs that are regulated under its solid waste program. Based upon this review, Indiana is recommending that EPA obtain authorization from Congress to add and devel op rules for CCR surface impoundments, disposal sites and reuse, with a full state program authorization, similar to the one developed for municipal solid waste landfills (MSWLFs) under 40 CFR Part
258. Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to re late CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06128

- 16 

### Organization 1 

### : Owensboro Municipal Utilities 

### Commenter 1 : Kevin D. Frizzell Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Ta sk: Examine Context Assigned/Due:



### Comment Excerpt Text: There are modifications to Subtitle D Prime that OMU supports to ensure its requirements are monitored and enforced. Instead of allowing the Subtitle D option to be self

- implemented and enforceable through RCRA's citizen suit provision, states should be al lowed to enforce compliance through a traditional permitting system. This will ensure federal and state efforts are not duplicated. Clear standards need to be implemented under the Subtitle D Prime approach that all states can adopt and provide a more effe ctive approach for the management of coal
combustion residuals.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06130

- 2 

### Organization 1 

### : Mecklenburg County, North Carolina 

### Comment er 1 : Heidi Pruess Commenter Type: Local Government627

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.6.1.2 4.4.5.1 4.4.7 

### Comment Excerpt Text: LUESA has reviewed the EPA proposed rules regarding the disposal of CCRs and supports the implementation of the subtitle D option with the following recommended requirements:

o Existing surface impoundments should be required to install liners within 5 y ears or shut down.

o New surface impoundments and landfills containing CCRs should be required to install liners.

o Groundwater monitoring should be required for new and existing disposal units. Groundwater impacts should be grounds for site closure.

o States should be required to submit to EPA for approval a framework for adequate enforcement of the new requirements. EPA’s support and guidance are critical.

o EPA indicates that the contaminants of concern rarely exceed the RCRA hazardous waste
toxi city characteristic, but mobility of metals such as arsenic have leached to levels of concern due to the large size of some disposal units. Therefore, a framework should be developed that regulates ash basin and storage/disposal unit size, ash volume being stored on site, and the duration of storage.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA. The commenter is further referred to Unit VI of the preamble for a discussion of the regulatory requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 117 

### 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:
O ther Sections: 4.5 

### Comment Excerpt Text: The Commonwealth supports the regulation of coal combustion residuals under the authority of Subtitle D of RCRA. As stated in numerous comments in Part II: Major Issues section, Kentucky has a framework of regulati ons ready to be revised to control this product and contends that regulation under Subtitle D accomplishes the same level of protection using the requirements for lining and enhanced monitoring and the approach advocated in these comments address all 4 poi nts mentioned above. It should be noted that the catastrophic failure from breaches mentioned628

in (3) resulted in damage due to the physical characteristics of the CCR, rather than toxicity or
hazardous characteristics. Those issues should be addressed thro ugh state dam safety programs and structural integrity processes. The process would be even more effective if EPA were to develop detailed, national regulations that states would be required to implement at a minimum and enforce. Regulation at the local an d state level is the most effective method for dealing with
this issue.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be impl emented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### 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 Sections: 4.5 7.4.1 

### Comment Excerpt Text: EPA Funding and Support of Sta te 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 cornerstone of solid waste funding, adsorbs most of the agency cuts and is wel l below previous levels. EPA is proposing a
self

- certification process by independent professional engineers and geologists. This signals to some legislators that our agency should not be involved in the process, thus undercutting our legitimacy for agency funding requests during the biennium budget and fee process and affects our ability to provide oversight, which we feel is essential. Kentucky requests that the agency delay the effective date five years, require state adoption of national regulations and provide funding. Since this requires the EPA to request a revision to RCRA from Congress, we urge the agency to do so.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 69 

### Organization 1 

### : Kentucky Department for Environmental Protection 

### Commenter 1 : R. Bruce Scott629

Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sect ions: 4.5 

### Comment Excerpt Text: The Commonwealth of Kentucky supports the regulation of coal combustion residuals under the authority of Subtitle D of RCRA. The proposed management methods and technology for the two proposals are identical. Enhanced monitoring, lining requirements, and publishing detailed national regulations that states would incorporate and enforce would accomplish the same goal of human health and environmental protection. Response: The Agency acknowledges and appreciates the comm ent, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 8 

### Organization 1 

### : Kentucky Department for Environmental Protection 

### Commenter 1 : R. Bruce Scott Commenter Type: State Government
Classification: Substantive Comment Category:
Current Ta sk: Examine Context Assigned/Due:
Other Sections: 4.5 

### Comment Excerpt Text: The following specific comments are provided by the Department for Environmental Protection and are provided to substantiate the Commonwealth position that the U.S. Environmental Protection Agency should withdraw the current proposed rule and re

- propose a single rule regulating coal combustion residuals (CCRs) under subtitle D with requirements for ponds and landfills, groundwater monitoring requirements, national standards that a ll states must adopt, and provide specific details on requirements for beneficial use. EPA has consistently viewed ash and CCR as high volume and low hazard materials. Regulation of CCRs is best handled at the local
and state level with additional assuranc es that those regulations will be implemented and enforced by the states to ensure protection of human health and the environment.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 064 0

- 06308

- 5 

### Organization 1 

### : NRG Energy Inc.630



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



### Comment Excerpt Text: C. The Subtitle D Program Should Include a Mechanism for State Implementation of the CCR
Rules

We request that EPA include a mechanism for qualified state programs to directly administer and enforce the Subtitle D CCR regulations and that all enforcement be the responsibility of the applicable state agencies. The EPA has proposed relying on citizen suits as a means to enforce the Subtitle D regulations. The burden of placing this responsibility on third party citizen suits and exposing facilities (and enf orcing agencies) to direct citizen suit enforcement with no ability for states to intervene is concerning and problematic. Further, a facility could be subject to a citizen suit enforcement action in federal court and to a wholly separate enforcement actio n in state court for violation of the parallel state requirement. This is burdensome to all parties and could result in inconsistent federal and state court determinations with respect to an identical regulatory requirement. It also could result in duplica tive federal and state penalties for essentially the same regulatory infraction.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 83 

### 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: 3.2.1 3.2.2 4.2.1 

### Comment Excerpt Text: It is unreasonable to expect that citizens and State regulators will be able to assure that CCRs are being disposed of in such a way that they will not result in releases which will impact Human
Health and the Environment.

State regulatory agencies have historically been under

- funded, under

- staffed, and un der the influence of pressure from legislators and lobbyists for the industries they regulate. The coal combustion industry has ties to and influence over legislators and regulatory agencies that citizen groups are not capable of establishing or maintainin g. Thus, in order to obtain effective, uniform enforcement, the regulations must be done under Subtitle C.631

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06356

- 3 

### 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: III. EPA Improperly Expands RCRA Citizen Suit Authority.

The record is bare of evidence that citizen suit litigation improves regulatory oversight or environmental outcomes, or that existing State authorities are inadequate to protect human health and the environment. See Section IV, infra. Yet EPA e levates special interest groups and citizen
suits to co

- equal status with State regulators. 75 Fed. Reg. at 35195 (EPA’s “RCRA subtitle D approach” to CCR regulation “relies on state (sic) and citizen enforcement”); Majority Letter at 2 (bipartisan majorit y “is concerned with the failure to recognize the role of the states...and with the enforcement provisions that would elevate the role of citizen suits.”). 2 Never before has
EPA elevated self

- interested advocacy groups, who have both a compelling economic i nterest in citizen suit litigation and an ideological antipathy to the coal mining and electric power industries, to at least a functional equivalency with State regulators, who serve the public interest. Compare 75 Fed. Reg at 35143

- 144 (Environmental Cou ncil of the States concludes State regulation is adequate and sufficient); 2 For example, the Agency claims “EPA believes it cannot conclude that the RCRA subtitle (sic) D regulations will ensure there is no reasonable probability of adverse effects on hea lth or the environment, unless there is a mechanism for states and citizens to monitor the situation...so they can determine when intervention is appropriate...”. Id. at 35195 (emphasis added). Therefore, EPA proposes to “require the owner or operator of the [ CCR] facility to obtain certifications by independent professional engineers...as a mechanism to facilitate citizen oversight and enforcement.” 75 Fed. Reg. at 35194. Strangely, EPA takes measures to facilitate citizen suit litigation without acknowledging, much less accounting for, the experience or input of State regulators. The Agency should at least explain why it has decided to empower litigious, “professional plaintiff” advocacy groups without support from State environmental agencies for doing so. 3519 5 (EPA determines without evidence that measures to “facilitate” citizen suits are required).

Congress intended RCRA citizen suits serve only a supplementary enforcement function. Here, however, EPA has used its regulatory policy

- making power to invest citizen suits with unprecedented regulatory prominence, effectively restructuring RCRA by regulation without Congressional sanction. EPA’s new policy is particularly hard to understand given the clearly632

expressed Congressional concerns regarding the taxpay er burdens, and the systemic abuse and collusion, associated with these suits. See e.g., Letter from Rep. Rob Bishop, et al., to Eric H. Holder dated November 3, 2009, http://robbishop.house.gov/WesternCaucus/News/?postid=152444; Majority Letter at 2

Respo nse: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble f or a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06357

- 1 

### Organization 1 

### : Kansas City Power & Light Company 

### Commenter 1 : Paul M. Ling Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: EPA Should Adopt the Subtitle D Prime Option, with Appropriate Adjustments, and Coordinate Implementation of the Subtit le D Regulations with the States

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06357

- 27 

### Organization 1 

### : Kansas City Power & Light Company 

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



### Comment Excerpt Text: The Subtitle D Program Must Include A Mechanism For State Implementation Of The CCR
Rules

While KCP&L supports the Subtitle D Prime option (with the adjustments), 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 regula tions where the state programs meet or exceed the federal controls.

It is essential that any final Subtitle D rules for CCRs include a mechanism for qualified state programs in Kansas and Missouri to administer the rules in lieu of the self

- implementing

a pproach set forth in the proposal. EPA Region VII is not currently staffed to handle the day to633

day administration of the proposed rule and there is no need for them to do so in this region where both Kansas and Missouri have viable programs in place. The EPA could evaluate state programs in the same manner they currently do for municipal solid waste landfills administered under state programs. EPA could readily develop a process for evaluating state CCR controls and determining whether state controls are n o 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

contr ols 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 f or 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 Determinat ions, 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 V and IX of the preamble for discussions as to how this subtitle D ru le will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06357

- 5 

### Organization 1 

### : Kansas City Power & Light Company 

### Commenter 1 : Paul M. Ling Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: The Subtitle D Prime Option Requires Ce rtain Amendments to Better Reflect CCR Disposal Operations

While KCP&L supports the Subtitle D Prime option, and believes that it can be administered through qualified state programs with back

- up EPA enforcement authority in under

- performing states, there are fundamental flaws with elements of the proposed regulations in need of
correction.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06409

- 18 

### Organization 1 

### : State of Alaska634



### Commenter 1 : Kristin J. Ryan Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.3.1 

### Comment Excerpt Text: 3. The proposed 40 CFR 257 subpart D regulations assign the responsibility for certifying the adequacy of the design, operation, monitoring, and closure of CCR landfills to independent registered professional hydrologists or engineers rather than to state regulatory agencies. The regulations are also designed " so that facilities are able to implement the standards without interaction with regulatory officials". [Footnote 12: Federal Register, Volume 75, No. 118, June 21, 2010, page 35211.] The ADEC disagrees with this concept because the independent professional hydrologists or engineers who provide the required certification will be contracted by the facility owner/operator. At that point, the hydrologist or engineer is no longer truly "independent". This creates a conflict of interest in which those who do the certifying are paid by
those who need the certification.

The proposed regulations also create a confusing situation in which CCR landfill owners and operators will need to design, build, operate, and close their facilities in compliance with both
Alaska's permitting program and the federal regulations. However, because the proposed Subtitle D regulations can be implemented without interaction with the ADEC, it is conceivable that a CCR landfill could be built without any contact with the ADEC. In that resp ect, the proposed Subtitle D regulations undermine the ADEC's role as the regulatory authority for Subtitle D disposal facilities in Alaska.

The ADEC also notes that deferring to paid consultants to certify designs and plans that
otherwise fall under stat e Subtitle D permitting programs contradicts the EPA's position regarding state Subtitle D permitting programs as stated in its proposed rule regarding the
Identification Of Non

- Hazardous Secondary Materials That Are Solid Waste. In that proposed rule, the EPA states that "the states are the lead Agencies for implementing the non

- hazardous waste programs and, as such, the Agency wanted to make sure that state programs are not adversely affected by any decisions that are made by EPA, noting that we see a ben efit to deferring to state decisions, which are able to consider site

- specific information.” [Footnote 13: Federal Register, vol. 75, no. 107, June 4, 20 10, page 31855.] The self implementing regulations of the proposed Subtitle D option that require no i nteraction with state regulatory officials suggest an entirely different intent.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 13 

### Organization 1 

### : Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC)635



### Commenter 1 : Matthew Frank (WI DNR) and Eric Callisto (WI PSC) Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assig ned/Due:
Other Sections: 4.5 4.1.2 

### Comment Excerpt Text: Input from Wisconsin Utilities. Department staff and managers met with Wisconsin utility representatives to discuss the federal proposal. These electric utilities include We Energies, Alliant Energ y, Wisconsin Public Service Corporation, Dairyland Power, Xcel Energy, and Madison Gas & Electric As noted previously, the department has many years of experience working with these companies on regulatory issues in general and waste management issues in

p articular, and we have a good working partnership on waste management and beneficial use of
CCR materials.

At this meeting, the Wisconsin utilities expressed support for Wisconsin’s regulatory approach. Furthermore these utilities agreed that EPA should use state regulation under Subtitle D with EPA and state program oversight. WDNR and these utilities believe a program for industrial wastes similar the EPA MSW Subtitle D program that allows for states to use their own regulations and statutes and resourc es to ensure quality industrial landfill siting, design, monitoring, operation and maintenance, along with a companion beneficial use program for appropriate industrial byproducts, is a better approach than the EPA Subtitle D self implementing approach.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the pream ble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 19 

### 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: 4.5 4.2.6 

### Comment Excerpt Text: In order to accompli sh this recommended approach, EPA should undertake considerable additional analysis based on comments, revise its proposed rule to focus solely on regulation under Subtitle D of RCRA in a manner consistent with the approach used for municipal solid

waste t hat calls for state oversight. Once these revised rules are drafted, EPA should provide for additional public comments.636

The department further recommends to EPA that the best management practices for CCR
materials is under an effective Subtitle D waste ma nagement program with adequate state oversight. An effective subtitle D program is a solid waste program with sufficient state regulatory over

- sight covering: facility siting, liner requirements, monitoring, capping, long term care and financial responsibi lity that should be adequate to ensure proper management of CCR material. This must include review by state Waste Program Regulatory staff in siting, design, and construction to ensure compliance. Based on our experience, WDNR does not believe the EPA
self

- implementing approach would be successful and the self

- implementing provision should be removed and replaced with a requirement for state oversight where states can demonstrate an effective program under Subtitle D. WDNR recommends EPA reexamine its inter pretation of its regulatory authority to delegate to states the authority to manage Subtitle D equivalent programs.

If additional authority is needed for EPA to delegate such a program to the states, then EPA should work with Congress to create the neces sary authority.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 44 

### Organization 1 

### : Wisconsin Department of Natural Resources (WI DNR) and Public Service
Commission of Wis consin (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: 4.2.3.1 4.4.5.1.1 

### Comment Excerpt Text: EPA requests input on pages 35194 & 35197 of the preamble on whether independent 3rd party PE is sufficient guarantee that regulationss will be protective and whether other mechanisms would provide facility flexibility and/or verification. We do not agree with a self

- implementing approach in this proposed rule and believe that there is substantial value in a site investigation or siting process and State and/or federal agency review. Landfills are similar in magnitude to large public works projects, i n that detailed review by a building permit review engineer is necessary to protect the public interest. The self

- implementing nature of the proposed rule is not sufficiently flexible or protective.

We do not agree with the assertion that an independent 3rd party PE is a sufficient guarantee that solid waste disposal facilities are adequately designed, constructed, operated, or closed. Our concern is based on experience dealing with owners, contractors, and consultants, both in design
and in construction. EPA states in the Preamble that it is concerned about the lack of uniformity or adequacy when comparing State programs. Professional engineers vary in their experience, training, and background in the varied aspects of practice that are needed to design a nd construct637

a solid waste facility. They also operate in a market where the need for jobs and market share work against doing more than the lowest common denominator. We have seen the problems that can occur if owners of waste disposal facilities select e ngineering firms that are small, inexperienced, or operating outside of their past professional practice. We do not believe that leaving decisions about acceptability of design or construction solely in the hands of an consulting engineer employed by the l andfill owner is adequate.

Landfills are large earthwork structures, and earthwork construction is difficult, time

- consuming, and subject to delays due to weather and availability of equipment and materials, all of which results in considerable pressure to complete projects. This can lead to shortcuts that are not advantageous. We find that interaction between regulatory staff, landfill owners, and technical consultants is essential to assure that landfill construction meets the intent of the facility des ign.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of th e preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 45 

### 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: 4.3.1 

### Comment Excerpt Text: The proposed notifi cation by use of internet web pages is after

- the

- fact and does not substitute for interaction with the utility and its consulting engineer at the siting and design stage and observation during construction. We have found that these steps are crucial for ef fective design and documentation of solid waste landfills since landfill plan review in our agency started in the
mid

- 1970’s.

The proposed internet web posting of notices and other information may be sufficient for after

the

- fact record

- keeping. We do no t object to the use of the web, although EPA should be cautious to not become dependent on a technology that may become outdated. We recommend that the rule require that owner/operators of CCR landfills be required to provide documents directly to the Stat e agencies that regulate landfills. Documents could be provided electronically and, once received by the State agencies, would be publicly available under State and Federal public record rules.

If EPA intends to proceed with the RCRA Sub D self

- implement ing alternative, the rule should638

also clearly state that it does not supersede or override authority by State agencies to require a review process for plan review of siting, design, construction, waste filling, and closure.

Response: The Agency acknowle dges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 47 

### 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: 4.3.1 

### Comment Excerpt Text: The proposed notification of the State agencies discussed on pp. 35194

- 35195 or the preamble proposes that a web site maintained by each utility would be required for concurrent notification of States agencies and the public of documentation in the operating record. This is after

- the

- fact reporting of accomplish ed actions, and is not sufficient for effective plan review and interaction prior to changes being made to design, construction, monitoring, recordkeeping, etc. of utility CCR disposal facilities.

We do not object to the posting of information on a web p age, as long as cost of maintaining the web page is bourn by the utilities and provisions are made to assure that the web page or successor technologies will be maintained over the time period for siting, licensing, construction, filling, closure, and long

- term care, which collectively could be several decades.

However, a more significant issue for environmental protection is to assure that State agency authority will be maintained for plan review, licensing, inspections, construction oversight, receipt o f monitoring data, etc., without being superseded or compromised by a federal rule. Information should not be withheld from State agencies because of perceptions that it is a duplication of the web

- based notification. In particular, documentation of propos ed design, achieved construction, monitoring instrumentation and results, closure work, remedial actions, etc., should be required to be provided directly to the State agency prior to implementation and in accordance with State agency timelines. The rule s hould not imply or state that it is sufficient to post information on a web page after the fact as satisfying the legitimate interest State agencies have in regulating CCR disposal facilities.

We have found it essential as a State regulatory agency to pe rform plan review prior to allowing owners to proceed with construction, to inspect facilities during construction, to be able to review construction documentation and any proposals for design changes before they are implemented, and to receive all monitor ing data for retention in and extraction from our639

electronic database systems. It is not sufficient for the State agencies to be notified of such items
after the fact.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of R CRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 5 

### 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 Go vernment Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.5 

### Comment Excerpt Text: In order to accomplish this recommended approach, we strongly suggest EPA undertake
considerable additional analysis based on comments received, and revise its proposed rule to focus solely on regulation under Subtitle D of RCRA in a manner consistent with the approach used for municipal solid waste that calls for state oversight. Once these revised rules are dr afted, EPA should provide for additional public comments.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and en forced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 71 

### Organization 1 

### : Wisconsin Department of Natural Resources (WI DN R) 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: 7.4.1 

### 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 c omply with all elements of the self

- implementing proposed RCRA Sub D CCR rules, more or less regardless of the content of State rules. We believe that it is essential that the640

proposed rule recognize that State rules will apply to CCR landfills and to incl ude a provision that States can approve CCR landfill with features that differ from the proposed rule requirements. As noted in several sections above, there are aspects of the proposed rule that may be less stringent than State rules or which address vari ations in engineering design or materials, climatic factors, or geologic situations that the proposed rule does not address or is in contradiction with modern technical or geotechnical practice. It is essential that State rules and
review actions be allowe d to modify requirements in the proposed RCRA Sub D self

implementing rule, to address technical judgment and to incorporate technical advances that the rule does not anticipate.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under su btitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06422

- 26 

### Organization 1 

### : Dynegy Inc 

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



### Comment Excerpt Text: CCR facilities must meet Subtitle D requirements

-- they are not optional, unenforceable guidelines. Most states, including New York and Illinois where Dynegy's CCR facilities are located, already implement and enforce effective regul atory programs tailored to the wide

ranging circumstances of CCR management, including groundwater monitoring, closure and post

- closure care requirements. Compliance with those requirements would still be required. Further, many other states are likely to adopt federal Subtitle D requirements for CCRs.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. Th e reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06422

- 29 

### Organization 1 

### : Dynegy Inc 

### Commenter 1 : Ben C. Trammell Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:641



### Comment Excerpt Text: As explained in detail in section XI.D of USWAG's comments on the Proposed CCR Rule, EPA also has the statutory aut hority to develop Subtitle D regulations for CCRs that can be administered by state permitting programs in the first instance and, where states fail to implement such programs adequately, directly enforced by EPA. RCRA sections 4010(c) and 4005(c) provide EPA that authority because non

- hazardous waste CCR disposal facilities have the potential to receive household wastes or conditionally exempt small quantity generator waste, whether or not such waste is actually received at the CCR disposal facility. Such an approach also would respect existing state programs that regulate CCRs.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06424

- 3 

### 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: 1.5 4.2.4 7.4.2 

### 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
authorit y for these rules 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 rules, 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 V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06589

- 3 

### Organization 1 

### : Commenter 1 : Paul Benedict Commenter Type: Private Citizen642

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



### Comment Excerpt Text: Your agency has also concluded that the states can safely manage coal ash under federal non

hazardous waste rules. I strongly support the development of non

- hazardous waste rules for coal ash that would complement rather than replace state regulatory progr ams. These rules could be quickly established and would typically involve landfill standards for municipal and non

hazardous solid waste, and rely on performance standards, rather than complex regulatory requirements.

Response: The Agency acknowledges a nd appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06589

- 5 

### Organization 1 

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



### Comment Excerpt Text: I am a great believer in states rights. Regulating coal ash as a non

- hazardous waste maintains the long

- standing state authority to regulate coal ash and relieves states of the burden of having to
administer a new fede ral program at a time when state budget resources are under great strain.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be

i mplemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06832

- 2 

### 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: 9.2.1 

### Comment Excerpt Text: This option could include language giving state agencies key implementation roles thereby643

allowing agencies such as the South Carolina Department of Health and Environmental Control to regulate CCRs under their solid waste regulations. This approach would enable the creation and implementation of an effective regul atory program that fully protects the environment while retaining and not unduly limiting effective options for beneficial use. In turn, this will help to preserve “green” jobs and avoid yet another negative impact to our nation’s fragile, struggling

econo my.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06838

- 7 

### Organization 1 

### : Minnesota Pollution Control Agency (MPCA) 

### Commenter 1 : Lisa Mojsiej on behalf of Tim Scherkenbach
Commen ter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.4.5.1.1 7.1.1.1 7.1.2.1 

### Comment Excerpt Text:

Liners:

There should be state oversight for all disposal facility designs. Minnesota does an independent review of all facility designs prior to permit issuance. MPCA staff have approved alternative liner designs for disposal facilities if they are at least as pr otective as the USEPA's proposed composite liner system. Minn. R. 7035.2815, subp. 7(K) allows the commissioner to approve an alternative liner system design ... "The commissioner's approval shall be based on the ability of the proposed liner system to con trol leachate migration, meet performance standards, and protect human health and the environment." These landfill liners consist of a 1 foot of clay, 2 feet of clay, or a Geosynthetic clay liner overlain by a minimum 60 mil HDPE liner.

Response: The Agen cy acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussio n relating to the decision to relate CCR under subtitle D of RCRA. With regard to alternative landfill liner diesigns the commenter is referred to the discussion in Unit VI of the preamble, as well as supporting documentation (Response to Comment document ) on this

issue.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06863

- 10 

### Organization 1 

### : Avista Corp. 

### Commenter 1 : Darrell Soyars Commenter Type: Electric Utility Company644

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 7.4.1 

### 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 alrea dy have well

- established and protective regulatory controls for CCRs. Therefore, it makes sense to coordinate development of new federal rules for CCRs with existing state regulations. Failure to do so will result in redundant and potentially inconsistent regulations and would contravene the Bevill Amendment’s directive that, in developing federal regulations for CCRs, EPA avoid duplication of effort with pre

- existing regulatory programs.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under s ubtitle D of RCRA.



### 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: 7.1 

### Comment Excerpt Text: The Subtitle D approach must allow for state implementation of the federal regulations. While Avista supports the Subtitle D Prime option (with the adjustments discussed below), a major shortcoming of this approa ch, 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 Colstri p is regulated through its Certificate of Environmental Compatability and Public Need], meets or exceed the federal controls. EPA’s proposed approach makes no practical sense, and it would result in parallel and redundant regulatory programs for the same m aterials. Colstrip has been fully regulated by the Montana Department of Environmental Quality (DEQ) since the plant was constructed, Avista is very concerned about how problematic it will be to maintain compliance with dual regulatory programs

– both stat e 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 rele vant part, that “the Administrator shall, as he deems appropriate, review studies and other actions of other Federal and State agencies concerning [CCRs] and invite participation by other concerned parties, including industry and other Federal and State ag encies, with a view toward avoiding duplication of effort.”]. EPA has previously recognized this point. One of the Agency’s primary reasons for645

concluding in its 2000 Regulatory Determination that CCRs do not warrant Subtitle C regulation was Congress’s ad monition 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 th e Subtitle D Prime option, and has proposed a self

- implementing program that will impose duplicative and redundant requirements.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 064 0

- 06863

- 27 

### 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: 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 burdenso me. Under this 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 i ndependently 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 e nforcement 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 and company resources, it could result in inconsistent federal and state court determination s with respect to an identical regulatory requirement. It also could result in duplicative federal and state penalties for essentially the same regulatory infraction. It is essential that any final Subtitle D rules for CCRs include a mechanism for qualifi ed 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 stri ngent 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 avoi d 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 in646

its Report to Congress and final Regulatory Determinations, and a void duplication of regulatory controls as directed by the Bevill Amendment.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06863

- 5 

### 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: 4.1.3 

### Comment Excerpt Text: Instead Avista believes that EPA regulation of CCRs under the s ubtitle “D Prime” option is more appropriate, including a modification that would integrate the federal rule with current state regulatory programs. This approach will create a reasonable and effective regulatory program that protects the environment, reta ins options for beneficial use, limits the reliability impacts, and preserves jobs, while not adversely impacting our economy.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06872

- 21 

### 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: 3.2.3 4.2.5 

### Comment Excerpt Text: According to EPA, the design and performance standards for the proposed regulations will likely be the same regardless of what regulatory scheme is selected. The major difference in the approaches is th at EPA asserts that a Subtitle C designation is necessary for it to retain and exercise appropriate enforcement authority and EPA cannot require States to permit landfills under Subtitle D. The PA DEP recognizes that regulatory oversight is important to en sure that CCR is managed appropriately; however, PA's Solid Waste Management Act already authorizes state enforcement authority, and PA DEP exercises that authority. Subtitle D requires state647

programs to have the necessary enforcement authority as part of the federal approval process. This approach has been successful for PA, as evidenced by the 96% compliance rate for CCR facilities. In addition, EPA already has broad RCRA 7003 enforcement authority to address "Potential Substantial Threats or Endangerment s to Human Health and the Environment" as well as imminent hazards for releases of solid waste and, therefore, it does not require the additional authority under Subtitle C.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of R CRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06917

- 15 

### 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:
Cu rrent Task: Examine Context Assigned/Due:
Other Sections: 4.5 

### Comment Excerpt Text: Subtitle D would be a better approach because it would give the states authority and flexibility to effectively regulate the management of CCRs. EPA's own studies support this position. EPA's conclusion in 2000 was that increased state oversight over CCRs produced significant improvements in waste management practices and that regulation under Subtitle D was appropriate.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to re late CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06956

- 4 

### Organization 1 

### : Tri

- State Generation & Transmission 

### Commenter 1 : Barbara A. Walz Commenter Type: Electric Utility Company
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
Tri

- State G&T believes that the current regulatory controls and permitting programs are protective of the environment and public health. Tri

- State G&T also believes that EPA can take648

no further action to regulate CCRs as a result of their proposal. However, EPA has set forth three regulatory options for public comment. Of the options proposed, Tri

- State G &T supports the Subtitle D Prime option, with necessary adjustments, however, 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 directly administer the Subt itle D CCR regulations where the state programs meet the federal controls without redundancy. EPA’s proposed approach would result in parallel and redundant regulatory programs for and, more importantly, would directly contravene the Bevill Amendment’s dir ective that EPA avoid duplication of effort with pre

existing regulatory programs. As a result of its findings in the final 2000 final Regulatory Determination and the supplemental 2007 joint EPA/DOJ report of state CCR programs, EPA is well aware that th ere 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 final Regulatory Determination that state CCR controls have substantially improved over the last 15 years, and that a high percentage of states had authority to impose protective management standards on surface impoundments and landfills, especially for groundwater monitoring, liners,
and leachate collection. 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 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. Tri

- State G&T believes that the 2000 final Regulatory Determination and the recent ASTSWMO survey indicate that the

cur rent regulatory structure is protective of the environment and public health.
Tri

- State believes 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

- implement ing approach set forth in the proposal. 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 s olid waste landfills under 40 C.F.R. Part 258). In those states that have qualifying controls for CCRs, EPA could 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 d egree 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 V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discu ssion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06987

- 30 

### Organization 1 

### : Entergy Services, Inc. 

### Commenter 1 : Joseph Hantz Commenter Type: Electric Utility Company649

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



### Comment Excerpt Text: Subtitle D Option Should Be Revised To Allow For State Implementation

As discussed above in regards to the adequacy of existing Solid Waste Management programs in place in Arkansas and Louisiana, Entergy is supportive of EPA’s intent to promulgate federal minimum criteria for the management of Coal Combustion Residuals (CCRs) under RCRA
Subtitle D non

- hazardous waste rules. However, as currently written, the Subtitle D p roposal
allows for self

- implementation with enforcement through citizen and state law

- suits. Entergy requests the EPA revise the Subtitle D proposal to allow for minimum federal standards that are implemented through state permitting, compliance and enfor cement programs. Adequate programs are already in place in many states to ensure that the management of CCRs occurs in such a way that protects the environment, complies with regulations, and ensures the continued beneficial reuse of CCRs. It would be inap propriate for EPA to override these adequate existing state programs. This concept also would expose utilities to a very uncertain and uneven process of “regulation by lawsuit.”

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D o f RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06987

- 7 

### Organization 1 

### : Entergy Services, Inc. 

### Commenter 1 : Joseph Hantz Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.5.1 7.4.2 

### 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. Entergy also believes that this option does not limit EPA’s enforcement authority, since sections 4003(a), 401 0(c) and similar provisions of RCRA clearly allow EPA to oversee state rules regulating solid wastes. EPA already exercises this authority with municipal solid waste (MSW) landfills and non

- MSW landfills that may receive conditionally exempt small quantity generator hazardous waste.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be650

implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06988

- 14 

### Organization 1 

### : Missouri Joint Municipal Electric Utility Commission 

### Commenter 1 : Floyd Gil zow Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: MJMEUC joins APPA in endorsing USWAG’s comment that the Subtitle D Program must include a mechanism for state implementation of the CCR rules.

Response: The Agency acknowledges and appreciates the comment, the commenter is
referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06993

- 10 

### Organization 1 

### : Oglethorpe Power Corporation 

### Commenter 1 : Douglas J. Fulle Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Tex t: EPA has already acknowledged significant improvements in state CCB programs and industry practices over the years. [Footnote 15: 65 Fed. Reg. 32214, 32215 (May 22,2000).] Nevertheless, EPA expresses concern with the Subtitle D option in noting that some states still have not developed Subtitle D

- type regulations for CCB disposal, especially CCB surface impoundments. [Footnote 16: 75 Fed. Reg. at 35153.] Apparently, EPA has concluded that these states will be unable to implement Subtitle D standards for C CBs because they have not already done so. This reasoning is circular and flawed. EPA has never promulgated Subtitle D standards for CCBs, and as a result, states have been without any federal guidelines relating to CCB disposal. The record lacks any reaso nable basis for concluding that states would fail to implement Subtitle D standards for CCBs, if EPA were to promulgate them.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for d iscussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.651



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06993

- 7 

### Organization 1 

### : Oglethorpe Power Corporation 

### Commenter 1 : Douglas J. Fulle Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text : Nothing in the rulemaking record indicates that states would be unable to implement and enforce minimum federal standards for CCBs under Subtitle D of RCRA. In fact, the vast majority of
states with coal

- fired utilities already have permit programs for C CB landfills. [Footnote 8: Id. at 35152.] Most of those states enforce minimum liner requirements and mandatory groundwater monitoring. While liner requirements are less prevalent for surface impoundments, more than
half of the states with coal

- fired utili ties implement permit programs for CCB surface impoundments. States have made these significant advancements in their CCB programs even in
the absence of federal minimum standards for CCBs under Subtitle D.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the de cision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 3 

### Organization 1 

### : Nebraska Department of Environmental Quality (NDEQ) 

### Commenter 1 : David B. Haldeman Commenter Type: State Government
Classification: Substantive
Comm ent Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: However, none of the approaches discussed in the proposal allow for an appropriate level of flexibility for implementing a program in varying geologic and climatic settings. We firmly believe it would be appropriate to grant states with comprehensive permit programs flexibility in how CCR landfills are designed, constructed, and operated.

Response: The Agency acknowledges and appreciates the comment, the commenter is
referr ed to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.652



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07682

- 8 

### Organization 1 

### : Class of '85 Regulatory Response Group 

### Commenter 1 : Debra J. Jezouit et al., Baker Botts L.L.P. on behalf of Class of '85 Regulatory Response Group Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.5.1 

### Comment Excerpt Text: EPA should coordinate the implementation of the Proposal's Subtitle D Prime Option with the states and allow qualified state programs to directly administer Subtitle D CCR regulations.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemente d and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### 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: 7.4.1 4.2.3.1 4.5 

### Comment Excerpt Text: For these reasons, Maryland suggests a s ystem like that used for municipal solid wastes under 40 CFR 258, where States must integrate the federal standards into the State program and seek program approval from EPA under 40 CFR 239. This eliminates duplicative requirements and allows States to pr ovide detailed technical review by hydrogeologists and engineers of their solid and industrial waste permitting units to proposed CCR disposal facilities, to ensure that these units are safely designed and operated. This is much more desirable than relying on third

- party certifications by consultants as would be the case under the proposed RCRA D option, whom may not as fully cognizant of the geotechnical conditions that exist in any given area, or be as familiar with the historical operating conditions at a particular site.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 11 

### Organization 1 

### : Maryland Department of the Environment (MDE)653



### Commenter 1 : Shari T. Wilson
Commenter T ype: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: While we understand that EPA strongly desires to have a direct role in the enforcement of the rules applicable to CCR, we suggest that EPA consider using the “as stringent as federal law” standard and ensure a threshold level of protection for disposal in that manner. Establishing national standards and working with the States, which already have permitting and enforcement capabilities, would be the most effective means of implementing these standards.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 14 

### 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: 3.1.2 

### Comment Excerpt Text: Maryland also generally agrees with the technical requirements of the proposed approaches proposed. The Department, however, does not fully support either of the proposed regulatory options

Response: The Agency acknowledges and appreciates the comment, the commenter is
referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Num ber: 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:654

Other Sections: 4.2.3.1 7.4.1 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 approval
from EPA unde r 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 the se 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 V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 24 

### Organizatio n 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 7.4.1 

### Comment Excerpt Text: It is also more desirable than the excessive requirements of the RCRA C approach, which, particularly with respect to the manifesting requirement, do not add any additional level of safety at all while adding a tremendous burden to both the haulers and the States.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV o f the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 27 

### 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:655

While we understand that EPA strongly desires to have a direct role in the enforcement of the rules applicable to CCRs, we suggest that EPA consider using the “as stringent as federal law” standard and ensure a threshold level of protection for disposal in that manner. In the interim, establishing national standards and working with the States, which already have permitting an d enforcement capabilities, would be the most effective means of implementing these standards in a practical way in the least amount of time.

Response: The Agency acknowledges and appreciates the comment, the commenter is
referred to Units V and IX of t he preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 29 

### 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: 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 where confirmed impact due to CCRs occurred, is in fact such a case. However,
some other commentors have used this and other damage cases to support the position that the States have not effectively addressed coal combustion residuals, and that therefore the only alternative is to regulate these materials as hazardous wastes. EPA’s discussion of this case in the
Preamb le makes reference to a Consent Order that included a very significant penalty as well as remedial, closure, and post closure uses that address this site effectively allowing it to be used after closure in a safe and protective manner. Also, Maryland has p romulgated 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 regu lations. This, as well as the success of the 40 CFR 258 regulations governing municipal waste landfills, makes the case that designation as a hazardous waste is not the only way to insure that the public is protected from the potential adverse effects
of c oal combustion residuals.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also refe rred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 3 

### Organization 1 

### : Maryland Department of the Environment (MDE) 

### Commenter 1 : Shari T. Wilson656

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

### Comment Excerpt Text: Maryland also generally agrees with the technical requirements of EPA’s proposed appro aches. The Department, however, does not fully support either of the proposed regulatory options

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 49 

### Organization 1 

### : Maryla nd 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 3.1.2 7.4.1 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 i nto their program and seek program approval from EPA under 40 CFR 239. This would eliminate the potential for State and federal regulators to work at cross purposes, and facilitate compliance. It would also allow the States to provide detailed technical re view 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 certificat ions 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

- tim e.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08221

- 5 

### Organization 1 

### : NextEra Energy, Inc. 

### Commenter 1 : Tomey Tuttle Commenter Type: Electric Utility Company657

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



### Comment Excerpt Text: As part of a subtitle D approach, USEPA should provide for recognition of effective state management programs.

Response: The Agency acknowledges and appr eciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decisi on to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 23 

### Organization 1 

### : Ohio Environmental Protection Agency 

### Commenter 1 : Chris Korleski Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.1 4.2.4 4.5 

### Comment Excerpt Text: Specifically, Ohio EPA urges U.S. EPA to reexamine the legal interpretation on existing authority or seek appropriate authority to adopt rules for the U.S. EPA approval of state CCR permit programs modeled after the highly successful Title 40 Part 239: Requirements for State Permit Program Determination of Adequacy. The Title 40 Part 239 approach would ensure that states with U.S. EPA approved permit programs have direct state enforcement authority in addition to the citizen suit enforcement authority. It also clarifies that an owner or operator of a CCR disposal facility is not obligated to follow the RCRA subtitle D federal rules if that owner or operator ha s obtained and complies with an approved state issued CCR disposal facility permit. This avoidance of duplicative regulation is a significant “carrot” for both industry and state government to seek U.S. EPA state permit program approval. For over a decade (1999), this approach has successfully ensured state permitting of MSW landfills consistent with minimum national standards. This Title 40 Part 239 approach is widely accepted by the states with the vast majority having obtained U.S. EPA approval of their state permit programs. It should be noted that this has been accomplished by states without the aid of any federal funding.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08 226

- 5 

### Organization 1 

### : Ohio Environmental Protection Agency658



### Commenter 1 : Chris Korleski Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.1 4.2.4 4.5 

### Comment Excerpt Text: Ohio EPA acknowledges U.S. EPA and citizens' concerns regarding the reliance of RCRA subtitle D on citizen suit enforcement authority. Specifically, Ohio EPA urges U.S. EPA to reexamine the legal interpretation on existing enforcement authori ty to adopt rules for the U.S. EPA approval of state CCR permit programs modeled after the highly successful Title 40 Part 239: Requirements for State Permit Program Determination of Adequacy. The Title 40 Part 239 approach would ensure that states with U. S. EPA approved permit programs have direct state enforcement authority in addition to citizen suit enforcement authority. It also clarifies that an owner or operator of a CCR disposal facility is not obligated to follow the RCRA subtitle D
federal rules i f that owner or operator has obtained and complies with an approved state issued CCR disposal facility permit. This avoidance of duplicative regulation is a significant "carrot" for both industry and state government to seek U.S. EPA state permit program a pproval. For over a decade (1999), this approach has successfully ensured state permitting and state enforcement authority for MSW landfills consistent with minimum national standards. This Title 40 Part 239 approach is widely accepted by the states with t he vast majority having obtained U.S. EPA approval of their state permit programs. I note that this has been accomplished by states without the aid of any federal funding.

Response: The Agency acknowledges and appreciates the comment, the commenter is

re ferred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCR A.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08251

- 11 

### 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: 10.2.2.1 10.2.2.2 4.4.5.1 4.4.7 4.4.8 4.2.4 4.4.9.1 

### Comment Excerpt Text: MassDEP recommends that the final EPA regulations include the following critical provisions: • National minimum design and performan ce standards for disposal in landfills that include requirements for a composite liner, leachate collection, groundwater monitoring and final closure

• Regulation of beneficial uses of CCR, including potential exemption from further regulation for
certai n encapsulated uses of CCR in cement products or similar encapsulated uses in products659

• State or federal compliance assurance for beneficial uses to ensure that such uses will be protective of public health and the environment

• Financial assurance fo r landfill closure and post

- closure monitoring and maintenance

• Allowance for states to be more stringent than the final EPA rules

• Clear enforcement authority and permitting authority for states

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08251

- 12 

### Organization 1 

### : Massachusetts Department of Environmental Protection 

### Commenter 1 : James C. Colman Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Exam ine Context Assigned/Due:
Other Sections: 4.4.5.1.1 4.2.4 

### Comment Excerpt Text: EPA has asked whether the final regulations should provide for alternative liner designs. MassDEP recommends that alternative designs be based on performance equivalent to the specified standard design. The Massachusetts regulations include a provision all owing for review and approval of alternative designs as long as the design will achieve equivalent or superior performance to the standard design for the life of facility operations, closure and post

- closure period. The equivalent design must use methodol ogies, materials and technologies that are clearly demonstrated to have been successful in similar applications and can use acceptable QA/QC methods to monitor construction and performance.

MassDEP believes alternative designs make the most sense where t here is a regulatory agency reviewing and approving the alternative. In a self

- implementation regulatory scenario, allowing for alternative designs without agency oversight creates potential compliance issues. If alternative designs are allowed, compliance could be certified by the state or federal government or an independent third

- party verifier subject to audit and enforcement.

MassDEP strongly recommends that there needs to be state or federal oversight of design and operations of facilities that disp ose of CCR. While CCR may be less problematic to manage in a landfill environment than MSW and presents fewer management issues, proper design and construction of landfills and monitoring systems is critical and should have a federal or state oversight and approval process. However, absent state or federal oversight, reliance on third party review and certification by independent registered professional hydrogeologists or660

engineers, as appropriate, would be beneficial provided the facility design and operat ion are subject to state or federal audit and enforcement.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and e nforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to re gulate CCR under subtitle D of RCRA. Finally, the commenter is referred to the discussion in Unit VI of the preamble that addresses alternative liner designs for new CCR landfills and surface impoundments



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08848

- 5 

### Organization 1 

### : American Coalition for Clean Coal Electricity (ACCCE) 

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



### Comment Excerpt Text: EPA's concerns about the Subtitle D approach are unfounded. Another concern raised by EPA is
that the Subtitle D co

- proposal will be administered by the Sta tes and not by EPA. ACCCE does not believe that the decision whether to proceed under Subtitle C or Subtitle D can, or should, be based on the assumption that States will fail to adopt or enforce the minimum national performance standards set by EPA?s Subt itle D criteria. Notably, EPA essentially concludes in the preamble that "even though overall industry practices appear to be improving," the fact that there have been incidents of "proven damages" to groundwater and surface water under existing State prog rams must mean that those programs are necessarily inadequate. [Footnote 4: 75 Fed. Reg. at 35,157]. In reaching this conclusion, EPA fails to take into account the critical fact that those state programs were developed and implemented by the States in the absence of national criteria under Subtitle D. Indeed, the whole purpose of the Subtitle D co

- proposal would be to establish minimum technical standards that would be prospectively adopted by the States and incorporated into new or existing regulatory pro grams.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to re gulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08858

- 5 

### Organization 1 

### : Cogentrix Energy, LLC 

### Commenter 1 : C. Richard Neff Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:661

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Having enforcement of this rule in the hands of the states leaves it where the regulators are most knowledgeable of the generating industries and the locales where any materials that are not beneficially used, are disposed of.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rul e will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09282

- 2 

### Organization 1 

### : North Carolina Department of Environment and Natural Resources 

### Commenter 1 : Dexter R. Matthews Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.5 4.4.9.1 

### Comment Excerpt Text:

N CDWM proposes that EPA regulate CCRs under Subtitle D of RCRA with modifications to the current proposal. Rule changes

-- and if necessary statutory changes

-- should be made to make federally approved state permitting programs the foundation for regulatin g CCR disposal. EPA should also provide financial incentives for states to implement federal criteria through state solid waste programs.

A system of prior approval exists in most, if not all, states that will ensure greater consistency
across the countr y than the current self

- implementing proposal under Subtitle D. Regulation under Subtitle D should embrace the existing state permitting programs. A federal approval role would ensure that those permitting programs meet or exceed minimum national criteria for CCR disposal. The implementation schedule for a final rule under Subtitle D would need to allow time for states to make necessary changes in existing state rules and statutes to incorporate federal
criteria.

One element that should be added to regula tion under Subtitle D is a requirement for financial assurance. Financial assurance for closure, post closure care, and corrective action should be included in the final rule as a mechanism to ensure that funds will be provided by owner and operators to ca rry out these activities.

With an enhanced regulatory system under Subtitle D that recognizes state permitting programs and provides financial incentives for states to implement federal criteria, EPA can address the risks of disposal of CCRs without risk of damaging existing reuse and recycling markets.

Response: The Agency acknowledges and appreciates the comment, the commenter is662

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA. As a final matter, financial assurance requirements were not proposed under the subtitle D option and are no t being promulgated under this rule. As discussed in the proposal, if financial assurance is to be addressed for those units affected by this rule it would be in a separate action, possibly under the authority of CERCLA. See75 FR at 35210, June 21, 2010.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09282

- 9 

### Organization 1 

### : North Carolina Department of Environment and Natural Resources 

### Commenter 1 : Dexter R. Matthews Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Exami ne Context Assigned/Due:
Other Sections: 4.5 

### Comment Excerpt Text: Prior Approval Under Subtitle D Approach is Needed:

A system of prior approval of design and operational plans, such as the permitting system used in North Carolina, should be included in the regulations. A state agency should issue the prior approval for CCR disposal facilities.

Existing state programs s hould have the ability to gain EPA program approval to implement permitting, inspection/enforcement and other oversight of the CCR landfills and surface impoundments under RCRA Subtitle D.

Groundwater monitoring and air criteria should be reported to the state program.

Prior approval from the state program should be required for assessment monitoring plans, assessment of corrective measures, selection of remedy and implementations of the corrective action regulations, closure plans and post

- closure care plans.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to the recordkeeping requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 35 

### Organization 1 

### : Arizona Department of Environmental Quality (ADEQ) 

### Commenter 1 : Benjamin H. Grumbles Commenter Type: State Government
Classification: Substantive663

Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.4.5.1.1 7.1.1.1 4.7 

### Comment Excerpt Text: Pg. 35243, Section 257.70 Design criteria for new CCR landfills and lateral expansions: States must have the flexibility to review and approve of alternative liner designs that will provide adequate protection. Arizona’s Aquifer Protection Permit Program requi res the use of a Best Available Demonstrated Control Technology criteria and process in developing the design for a facility which allows for the use of site

- specific design elements. Arizona requests that paragraph (a)(1) of this section be modified to al low alternate designs approved under state programs as follows (modification in italics):

(1) With a composite liner, as defined in paragraph (a)(2) of this section and a leachate collection system that is designed and constructed to maintain less than a 30

- cm depth of leachate over the
liner or an alternate design approved by the Director of an approved state that demonstrates that leachate will be contained or managed in a manner that is protective of groundwater and surface water. The design of the comp osite liner and leachate collection system or alternate design must be prepared by, or under the direction of, and certified by an independent, registered, professional engineer.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 36 

### 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: 4.4.5.1.1 7.1.2.1 4.7 

### Comment Excerpt Text: Pg. 35243, Section 257.71 Design criteria for existing CCR surface impoundments: States must have the flexibility to review and approve of alternative liner design s that will provide adequate protection. Arizona’s Aquifer Protection Permit Program requires the use of a Best Available Demonstrated Control Technology criteria and process in developing the design for a facility
which allows for the use of site

- specific design elements. Arizona requests that paragraph (a)(1) of this section be modified as follows (modification in italics):

(1) With a composite liner, as defined in paragraph (a)(2) of this section as a leachate collection system above the upper component s of the composite liner or an alternate design, approved by the Director of an approved state, that prevents migration of wastes out of the impoundment to subsurface soils, groundwater, or surface water. The design shall be in accordance with a design664

pre pared by, or under the direction of, and certified by and independent registered professional engineer.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 41 

### 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: 4.4.8.4 4.7 7.1 

### 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 indepen dent registered professional engineer.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader i s also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 43 

### 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: 4.4.8.9 4.7 

### Comment Excerpt Text: Pg. 35253, Section 257.101 Post

- closure care requirements: The Director of an approved state must have the ability to review and approve any request for reduction in the 30

- year post

- closure care period. Arizona requests that paragraph (b)(1) be modified as follows (modification in665

italics):

(1) Decreased if the owner or operator of the CCR landfill or surface impoundment demonstrates that the reduced period is sufficient to protect human health and the environment and this demonstration is certified by an independent registered professional engineer and approved by the Director of an approved state. Upon approval, the demonstration shall be placed in the operating record and on the owner’s or operator’s publicly accessible Internet site.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09713

- 3 

### Organization 1 

### : Indianapolis Power & Light Company (IPL) 

### Commenter 1 : Dana G. Meier Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Conte xt Assigned/Due:



### Comment Excerpt Text: In this respect, IPL believes that any final Subtitle D regulatory program for CCRs must include a mechanism for the administration and implementation of the rules by the states. As EPA itself has concluded, many states already have well

- established and protective regulatory controls for CCRs. Therefore, it makes no sense not to coordinate development of new federal rules for CCRs with existing federal and state solid waste regulations that already apply to CCRs. F ailure to do so will result in redundant and potentially inconsistent regulations and would contravene the Bevill Amendment's directive that, in developing federal regulations for CCRs, EPA avoid duplication of effort with pre

- existing regulatory programs.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the pre amble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09885

- 19 

### Organization 1 

### : Progress Energy, Inc. 

### Commenter 1 : Caroline Choi Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:666

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The Subtitle D program must include a mechanism for state implementation of the CCR rules

While Progress Energy supports the Subtitle D Prim e option (with the adjustments described 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 regula tions where the state programs meet or exceed the federal controls. Such an approach would result in parallel and redundant regulatory programs for the same materials and, more importantly, would directly contravene the Bevill amendment’s directive that EP A avoid duplication of effort with pre

- existing regulatory programs. EPA has previously recognized 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 Congre ss’ 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.

As a result of its findings in the final 2000 Regulatory Determination and the supplemental 2007 joint EPA/DOE Report of state CCR programs, EPA is well aware that there are many mature state CCR regulatory programs with permitting, liner, a nd groundwater monitoring controls similar to those proposed in the Subtitle D options. In fact, EPA concluded in its 2000 Regulatory Determination that state CCR controls have “substantially improved over the last 15 years,” and that a “high percentage of states had authority to impose protective management standards on surface impoundments and landfills, especially for groundwater monitoring, liners, and leachate collection...” Under this dual regulatory approach, for example, an owner/operator
of a CCR dis posal facility could be found to be in non

- compliance with a groundwater monitoring requirement that is contained in both the Subtitle D self

- implementing rule and in an independently administered state regulatory program. In these circumstances, the owner /operator could be subject to a citizen suit enforcement action in federal court for alleged violation of the
self

- implementing Subtitle D rule, and to a wholly separate enforcement action in state court for violation of the parallel state requirement. Apa rt from the waste of federal and state judicial resources, a dual regulatory approach could result in inconsistent federal and state court determinations with respect to an identical regulatory requirement. It also could result in duplicative federal and s tate penalties for essentially the same regulatory infraction.

It is essential that any final Subtitle D rules for CCRs include a mechanism for qualified state programs to administer the rules in lieu of the self

- implementing approach set forth in the

pro posal. EPA could readily develop a process for evaluating state CCR controls and determining whether state controls are no less stringent than the final Subtitle D controls (much like EPA does now in the case of municipal solid waste landfills under 40 C.F .R. Part 258). In those states that have qualifying controls for CCRs, EPA would allow the states to administer the controls to avoid the duplication of regulatory programs, with appropriate EPA backup. In this way, many of the self

- implementing procedures in the Subtitle D approach could be eliminated as there would be a qualified state regulatory body with responsibility for ensuring compliance with the applicable requirements. This approach would allow for the requisite degree of state667

involvement in adm inistration of the CCR rules that EPA concluded was appropriate in its Reports to Congress and final Regulatory Determinations and avoid duplication of regulatory controls as directed by the Bevill Amendment

Response: The Agency acknowledges and appreciat es the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10017

- 29 

### Organization 1 

### : Salt River Project (SRP) 

### Commenter 1 : Daniel J. Casiraro Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 4.5.1 4.4.5.1.1 4.4.7.5.2 4.4.7.2 4.6.1.4 

### Comment Excerpt Text: SRP urges EPA to adopt the non

- hazardous waste, Subtitle D Prime approach to regulation of CCRs with the following important revisio ns or modifications:

Allow alternatives to composite liners when site specific characteristics support such
alternatives.

Require closure, if necessary, only under a state approved program that provides a reasonable
time frame.

Allow an alternative l ist of groundwater monitoring parameters based on site specific conditions and approval by a registered professional.

Include a mechanism for qualified state programs to administer the rules instead of the self

implementing approach.

Ensure an adequate time frame for facilities to come into compliance.

The Subtitle D Prime option offers the same level of protection as the Subtitle C option without the significant and costly impacts of Subtitle C, while (i) allowing the continued use of environmentally acceptable existing CCR surface impoundments for the remainder of their useful lives; and (ii) supporting the continued beneficial use of CCRs.

Response: The Agency acknowledges and appreciates the comment, the commenter is
referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA. Finally, the

commenter is referred to the discussion on EPA’s risk analysis.668



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10017

- 9 

### Organization 1 

### : Salt River Project (SRP) 

### Commenter 1 : Daniel J. Casiraro Commenter Type: Electric Utility Company
Classification: Substantive Comment Categor y: Current Task: Examine Context Assigned/Due:
Other Sections: 4.5 4.6.1.1 

### Comment Excerpt Text: An additional critical concern under either Subtitle D options is the short time frame for implementation. Under the proposal, the rules would be effective 180 days after promulgation in the Federal Register, which would not allow facilities enough time to comply. EPA should ensure that states have sufficient time to adopt rules to facilitate their capability to run the program rather than having a self

- imple menting federal rule.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit VIII for a discussion of the effective date of the rule, as well as the implementation timelines for the regulatory requirements. The Agency has determined that

there i s sufficient time to implement these requirements. The commenter has not provided any information that would change the Agency’s decision on this matter.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10166

- 8 

### Organization 1 

### : Consumers Energy Company 

### Commenter 1 : Ga ry A. Dawson Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Any Subtitle D option must include a specific mechanism for state implementation of the CCR rules. As with other Subtitle D rules, the state agency should be allowed flexibility in the regulation of design, construction, and management of landfills, based upon the agency's expertise and knowledge of local conditions.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion r elating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10324

- 16 

### Organization 1 

### : Public Service Company of New Hampshire (PSNH) 

### Commenter 1 : William H. Smagula669

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



### Comment Excerpt Text: As another example, the proposal lacks any mechanism for qualified state programs to step in and directly administer the Subtitle D CCR regul ations where the state programs meet or exceed the federal controls. This could lead to dual enforcement actions for a single violation by way of a citizen suit enforcement action in federal court and an independently administered state regulatory enforcem ent action. This redundancy is wasteful and not necessary, as EPA does have the authority to implement and enforce Subtitle D rules.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preambl e for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10497

- 14 

### Organization 1 

### : Seminole Electric Cooperative, Inc. (Seminole) 

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



### Commen t Excerpt Text: VII. Subtitle D Regulations Should Provide for State Administration of a CCR Regulatory Program States should continue to be the principal regulatory authorities for the disposal of CCRs. For several years, states have successfully implemen ted EPA’s MSWLF regulations; many under an
EPA

- approved subtitle D program. A significant number of the provisions in the subtitle D prime option were modeled on, if not simply copied from, existing provisions in 40 C.F.R. part 258 applicable to MSWLFs. St ates, therefore, have extensive knowledge and experience implementing these regulations, and should be approved to similarly regulate the disposal of
CCRs. Implementation of a CCR program modeled on the existing MSWLF program, including a state

program app roval process, will avoid many of the deficiencies in the subtitle D prime option. Given the success of the MSWLF program and the state approval process, one can only assume that this approach was not proposed for CCRs for the sole reason that EPA lacks si milar authority to require state permits, approve state programs, and enforce the regulation of CCR landfills and surface impoundments. See 75 Fed. Reg 35194. EPA has attempted to work around this limitation by proposing a subtitle D prime regulatory const ruct that “relies heavily” on citizen enforcement. The resulting proposal, however, contains numerous deficiencies that will
hinder its effectiveness. The regulation of MSWLFs under Part 258 has been successful. If EPA promulgates federal670

regulations for t he management and disposal of CCRs, it should do so in this mold. The need for additional authority to implement such a program was recognized in a recent Congressional Research Service Report to Congress. Linda Luther, Congressional Research Service, Regu lating Coal Combustion Waste Disposal: Issues for Congress, (Sept. 21, 2010), Attachment “E”. Specifically, the report outlined several legislative options for Congress to address the future regulation of CCRs, including giving EPA additional authority to regulate CCRs under subtitle D similar to the Hazardous and Solid Waste Amendments of 1984 (“HSWA,” P.L. 98

- 616) added to 40 C.F.R. 6949a., that authorized EPA to establish criteria applicable to MSWLFs. [Footnote 12: The report also recognized the followi ng additional options available to Congress: 1) direct EPA to continue to exempt CCRs from regulation as hazardous waste; 2) require states to adopt a permit program for CCRs to meet EPA criteria; 3) create a new subtitle under RCRA that would specifically address CCRs; and 4) do nothing. Id. at 21.] Id. at 21. If EPA determines that federal regulation of CCRs is necessary, it should not sacrifice the effectiveness and coherency of those regulations by trying to force them into an inappropriate regulatory c onstruct. Rather, EPA should seek the necessary authorization from Congress to implement the proposed subtitle D prime option in a manner consistent with the existing MSWLF program

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under su btitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10497

- 18 

### Organization 1 

### : Seminole Electric Cooperative, Inc. (Seminole) 

### Commenter 1 : Carl Eldred Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Ex amine Context Assigned/Due:



### Comment Excerpt Text: [ATTACHMENT: See original comment for Attachment 10497.13: Linda Luther, Congressional Research Service, "Regulating Coal Combustion Waste Disposal: Issues for Congress," (Sept. 21, 2010) (referenced as A ttachment "E" in main comment)]

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10538

- 10 

### Organization 1 

### : Commenter 1 : Raymond von Drehle Commenter Type: Private Citizen671

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.1 

### Comment Excerpt Text: Another problem with regulating coal ash and CCR as a non

- hazardous waste is that the regulations would not be directly federally enforceable. State regulators are often unduly influenced by large public utilities and if the state fails to adopt and enforc e adequate regulations the only viable way of protecting public health and the environment is through citizen suits, which is a wholly untenable way to regulate over 150 million tons of toxic ash in nearly 50

states.

Response: The Agency acknowledges an d appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10739_DEN

- 051

- 7 

### Organization 1 

### : Sunflower Electric Power Corporation (Sunflower) 

### Commenter 1 : Paul Reynolds Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.5 

### Comment Excerpt Text: States must be given a role in implementing the Subtitle D option. It is essential to recognize and
allow for individual state administr ation of the Subtitle D option in order to avoid duplication with existing state programs and to 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 V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to relate CCR under subtitle D o f RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10739_DEN

- 051

- 8 

### Organization 1 

### : Sunflower Electric Power Corporation (Sunflower) 

### Commenter 1 : Paul Reynolds Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.5 3.1.2672



### Comment Excerpt Text: In summary, Sunflower believes the best approach to regulating CCRs nationally is to develop Subtitle D regulations, including a required permitting program that can be admini stered by states, with sufficient flexibility to consider local conditions. While this approach would likely require a supplemental proposal, it will ensure that EPA will "get it right" providing the Agency with the enforcement authority it desires, while avoiding the unnecessary and adverse implications of Subtitle C. There is simply no reason to pursue this approach when the Subtitle D option offers the same degree of protection without the attendant risks and burdens of Subtitle C.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10751_DEN

- 063

- 2 

### 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: 4.5.1 

### Comment Excerpt Text: A concern we have about both the Subtitle D and D Prime options, however, is the lack of any mechanism for states to step in and admin ister the regulations. Many states, including Arizona, have regulatory programs in place that meet or exceed the Subtitle D standards in EPA's proposal. So, rather than throw the proverbial baby out with the bath water, APS encourages EPA to allow qualifie d state programs to administer federal Subtitle D rules.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10779_DA

- 010

- 1 

### Organization 1 

### : Entergy Services, Inc. (Entergy) 

### Commenter 1 : Mark C. Bowles Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Let me begin by first stating that Entergy is supportive of federal regula tions for Coal673

Combustion Residuals (CCRs) under RCRA Subtitle D non

- hazardous waste rules though, as discussed below, any Subtitle D program must recognize and allow for the proper role of the states in administering these rules.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion r elating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10779_DA

- 010

- 4 

### Organization 1 

### : Entergy Services, Inc. (Entergy) 

### Commenter 1 : Mark C. Bowles Commenter Type: Electric Utility Company
Classification: Subs tantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.5.1 4.1.3 

### Comment Excerpt Text: Entergy has evaluated the alternatives contained in EPA’s proposed rule and believes that the “Subtitle D Prime” option is the best solution. Unlike the Subtitle C approach, D Prime will establish a robust and environmentally protective program for coal ash storage and disposal units without crippling coal ash beneficial use and imposing unnecessary regulatory costs on power plants, th reatening jobs and increasing electricity costs. The Subtitle D Prime option recognizes that existing CCR impoundments with sound performance should be allowed to continue to operate.

However, Entergy feels that the Subtitle D Prime option, as written, re quires 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 per mitting framework.

Entergy also believes that this option does not limit EPA’s enforcement authority since 4010(c) of RCRA and similar provisions clearly allow EPA to oversee state rules regulating solid wastes. EPA already does this with MSW landfills an d non

- MSW landfills that may receive conditionally exempt small quantity generator hazardous waste. For these reasons, we ask EPA to select the Subtitle D prime option in its final rule.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.674



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11015_CHA

- 050

- 4 

### Organization 1 

### : Georgia Power 

### Commenter 1 : Chuck Huling Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.5.1 

### Comment Excerpt Text: To conclude, Georgia Power supports dam integrity and a performance based approach for management of CCB units with state regulatory oversight and enforcement.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11195_CHI

- 026

- 3 

### Organization 1 

### : Prairie State Generating Company, LLC (PSGC) 

### Commenter 1 : Mark A. Shepherd Commenter Type: Electric Utility Company
Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due:
Other Sections: 4.5 4.2.4 

### Comment Excerpt Text: We believe that the States have an important role to play in the regulation of CCRs and should take the lead on regulating these materials. The belief, that federal enforceability under the Subtitle D option is inadequate to assure that companies manage CCRs safely, is erroneous. The regulations will be enforceable by the States and the public. Violators will be subject to significant civil penalties, ju st as they are now for municipal solid waste landfills that have at best similar challenges and at worst pose more risk than mono

- filled CCR landfills operated
under subtitle D.

As published, the proposed rules also have numerous defects and problems, ev en under the Subtitle D option. They seem to have been hurriedly compiled and many parts of the rule are ill
conceived and contradictive.

We urge the EPA to withdraw the current proposal and to work to propose regulations under Subtitle D that recognize that CCRs can be managed responsibly by States without destroying the unique qualities of CCRs that allow them to be beneficially and safely reused.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11286_CHI

- 064

- 5 

### Organization 1 

### : Hoosier Energy Rural Electric Cooperative, Inc. 

### Commenter 1 : Michalene Reilly675

Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/D ue: Other Sections: 4.5.1 

### Comment Excerpt Text: Hoosier Energy asks EPA to look at the science and bring back the only possible fair and protective standard

- regulation under Subtitle D, with an opportunity for states to achieve primacy on regulation an d enforcement.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11319_P

- 029

- 1 

### Organization 1 

### : Ebensburg Power Company 

### Commenter 1 : Gary Anderson Commenter Type: Electric Utility Co mpany Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.4 8.6.2 

### Comment Excerpt Text: EPA's motivation to propose these rules appears to be based on what EPA has termed "proven damage cases" siting two ash impoundment accidents at Kingston, TN and Martins Creek, PA. This is in spite of the fact that a thorough study of the Martins Creek accident found no adverse impacts to the river, wildlife or human health and that the Tennessee Dept of Heal th found no significant human health impacts due to the Kingston accident. These findings combined with the safe management of the vast majority of ash sites and beneficial uses clearly indicate that EPA is acting in a capricious manner.

While EPA sites t he NRC

- NAS Study concerning ash in its preamble it ignores its scientifically based factual findings ... which include:

1. Enforceable federal standards should be established to ensure that STATES have specific authority and implement adequate safeguards.

2. Primary regulatory mechanisms that should be used to develop enforceable standards are:

• SMCRA, Joint OSM

- EPA rules; or RCRA

- D rules

Response: The Agency acknowledges and appreciates the comment.676



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11357_P

- 071

- 7 

### Organization 1 

### : Sunbury Generation LP 

### Commenter 1 : Teresa Copenhaver Commenter Type: Electric Utility Facility
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.4 

### Comment Excerpt Text:

While EPA sites the NRC

- NAS Study concerning ash in its preamble it ignores its scientifically based factual findings...which include:

1. Enforceable federal standards should be established to ensure that STATES have specific
auth ority and implement adequate safeguards.

2. Primary regulatory mechanisms should be used to develop enforceable standards such as:

- Surface Mining Control Reclamation Act, Joint Office of Surface Mining and EPA, or the
Resource Conservation and Recover y Act Subtitle D Rules

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Section 4.2.3

- Proposed mechanisms to facilitate citizen enforcement and oversight (35194

- 35195) Total Number of Submissions: 1 Total Number of Comments: 1



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09728

- 17 

### 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: g. The EPA is effectively requiring third party certifiers to be regulators, undermining the authority of States under the Subtitle D option. If a State has a Subtitle D

- like program in place,
that Sta te agency should suffice for inspection and enforcement. Employing third party P.E.'s in such capacities could also expose them to unwarranted liability when defending their decisions.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be677

implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Section 4.2.3.1

- Third

- party certification: EPA seeks comment on requiring O/O to obtain certification by independent PE/hydgist that provisions are properly applied; does this provide right balance between establishing sufficient gua rantee regulations will be protective of HHE and offering facilities sufficient flexibility to feasibly implement requirements appropriate to site conditions (35194, 35197, 35223) Total Number of Submissions: 39 Total Number of Comments: 47



### Comment Numbe r: EPA

- HQ

- RCRA

- 2009

- 0640

- 06040

- 6 

### Organization 1 

### : Longview Power, LLC 

### Commenter 1 : Joseph R. Douglass Commenter Type: Electric Utility Facility
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Longview objects to the numerous provisions in the Subtitle D proposal requiring an "independent" professional engineer. A professional engineer operates under penalty of losing his license, whether "independent" or not. Most environmental regulatory progr ams require self

reporting, and written certifications by the owner or operator, under penalty of law. This program is no different, and the requirement that a 306 Dents Run Road, Morgantown, WV26501 Phone:
304

- 291

- 2850 Fax: 304

- 291

- 2851 p. 3 Proposed Coal Combustion Residual Rules Page 3 E PA

HQ

- RCRA

- 2009

- 0640 professional engineer be "independent" would add further cost for compliance with no added value. A qualified professional engineer should be eligible to make the certifications proposed under Subtit le D, whether "independent" or not.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must cert ify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this dec ision is conveyed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06196

- 25 

### Organization 1 

### : Comite Dialogo Ambiental 

### Commenter 1 : Ruth Santiago Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:678



### Comment Excerpt Text: EPA’s proposal to substitute state oversight with owner or operator paid consultants or professionals does not seem like a reliable way to provide for protection of human health or the
environment.Indu stry hired professionals that would operate under penalty of losing their licenses would depend on state enforcement of such penalties.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the prea mble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06196

- 34 

### 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: 4.4.5.1.1 4.4.7.2 4.4 .7.8.2 

### Comment Excerpt Text: In addition, Puerto Rico does not regulate the practice of hydrology and there are no provisions for state registration of hydrologists. Thus, the elements of the definition of an independent registered hydrologist would not b e meaningful in jurisdictions that fail to provide for registration of hydrologists (35130). This issue is significant because of the particular importance of ground water contamination risks posed by CCR land filling or disposal.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical

demonstration. Under t his rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- H Q

- RCRA

- 2009

- 0640

- 06198

- 7 

### Organization 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: VI. Registered Professionals679

Ameren supports the concept of using registered professionals to conduct a review of the disposal units and certify that design and operating criteria are being met and approve variances from the regulatory criteria, if appro priate, for particular CCR disposal units. Clearly, someone without the required expertise should not be certifying that surface impoundments or landfills have been designed and are operating appropriately. However, we believe that EPA should include profe ssional geologists to the list of registered professionals that have the expertise and authority to certify compliance with certain of the Subtitle D operating standards. In particular, it is appropriate to have professional geologists certify compliance w ith groundwater monitoring standards, just as it is appropriate for PEs to certify compliance with the design of such units.

We do not agree that PEs, hydrologists, and geologists must be independent (i.e., not an employee) of the owner/operator of the l andfill or surface impoundment. As EPA notes, even though an independent professional will not be an employee of the power producer, they will still be hired as an independent consultant of the company. Id. at 35194. Ameren believes that it is inappropriat e to require that such professionals be independent from the owner/operator of the disposal unit, because this condition imposes a significant barrier to meaningful and cost

effective compliance with the regulations, while providing little to not assurance that "independent' professionals have distinct interests from the owner/operator of the disposal unit.

Most utilities employ a number of PEs, hydrologists, and geologists who often work exclusively with company

- managed CCR disposal units. These professi onals typically possess the most relevant experience and knowledge about these types of disposal units, especially those units owned/operated by their employers. Company

- employed PEs, hydrologists and geologists are subject to the same type of state regist ration and licensing as those professionals that are not employed by these companies and have an equally strong incentive to maintain their licenses in good standing as those professionals that are "independent" of the utility or independent power producer . Such state

- licensing and registration programs will help to ensure that all professionals exercise proper judgment about the operation of CCR landfills and surface impoundments.

Notably, in a very similar regulatory program, EPA decided that not allowi ng PEs employed by facility owner/operators to certify regulatory compliance was inappropriate. EPA's position in the Spill Prevention, Control, and Countermeasure or "SPCC" program is equally applicable here; there is no reason for EPA to depart from this position in the CCR proposal. Given that professionals employed by a company are more familiar with their company's design and operation of disposal units, and because state registration and licensing arrangements ensure the sound professional judgment of all professionals, we believe that requiring "independence" of such professionals will add an unnecessary expense for us. Accordingly, EPA should eliminate the proposed requirements that these professionals be "independent" from the company for which they are certifying compliance.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an ow ner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.680



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06203

- 14 

### 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:



### Comment Excerpt Text: C. Compliance Certifications by In

- House Professionals

As discussed above, it is critical that any final Subtitle D program for CCRs allow for administration of the Subtitle D regulations by qualified state regulatory programs, such as the Arizona Department of Environmental Quality. In those states that EPA decides have adequate Subtitle D GGR programs, it would be unnecessary to have registered professionals certify compliance with the GGR regulatory provisions on behalf of the regulated owner/operator of the unit. In these instances, utilities such as APS would, of course, rely on these professionals for a review of all aspects of the design and operation of landfills and surface impoundments, but th ere is no need for the regulatory "certifications" contemplated under the self

- implementing Subtitle D option if Arizona is conducting a simultaneous and identical review of compliance with the regulatory provisions. In those states, however, that do not h ave qualified programs to administer and enforce the federal Subtitle D rules for GGR disposal, APS supports the concept set forth in the proposal of using registered professionals to conduct a review of the disposal units and certify that design and opera ting criteria are being met and approve variances from the regulatory criteria, if appropriate, for particular CCR disposal units.

With the limited exceptions identified below, APS also supports the proposed credential requirements for these professionals . Clearly, someone without the required expertise should not be certifying that surface impoundments or landfills have been designed and are operating appropriately. However, APS believes that EPA should add professional geologists to the list of registere d professionals that have the expertise and authority to certify compliance with certain of the Subtitle 0 operating standards. In particular, it is appropriate to have professional geologists certify compliance with groundwater monitoring standards, just as it is appropriate for PEs to certify compliance with the design of such units.

Importantly, APS does not agree that PEs, hydrologists, and geologists must be independent (i.e., not an employee) of the owner/operator of the landfill or surface impoundme nt. This condition imposes a significant barrier to meaningful and costeffective compliance with the regulations, while providing little to no assurance that "independent" professionals have distinct interests from the owner/operator of the disposal unit. APS employs a wide array of PEs and scientific staff, including registered geologists. Many of these professional staff provide direct oversight of the Company's CCR disposal units, or in other cases provide technical expertise in areas such as permitting, hydrology, groundwater monitoring, and regulatory compliance. These professionals possess the most relevant experience and knowledge about the Company's disposal units and the attendant operational and regulatory requirements. APS

- employed professionals a re subject to681

the same type of applicable state registration and licensing as those professionals employed by outside consulting and engineering firms, and have an equally strong incentive to maintain their licenses, registrations, etc., in good standing a s those professionals that are "independent" of the Company. Such state

- licensing and registration programs ensure that all professionals exercise proper judgment about the operation of CCR landfills and surface impoundments.

Notably, in a very similar r egulatory program, EPA decided that not allowing PEs employed by facility owner/operators to certify regulatory compliance was inappropriate. In the re

promulgation of the Spill Prevention, Control, and Countermeasures ("SPCC") regulatory framework, EPA ad dressed the issue of whether PEs employed by facilities should be allowed to certify SPCC plans. The Agency concluded:

We believe that most PEs, whether independent or employees of a facility, being professionals, will uphold the integrity of their profe ssion and only certify Plans that meet regulatory requirements. We also agree that an inhouse PE may be the person most familiar with the facility. EPA believes that a restriction of in

- house PE certification might place an undue and unnecessary financial burden on owners or operators of facilities by forcing them to hire an outside engineer.

67 Fed. Reg. 47042, 47053 (July 17, 2002).

EPA's position in the SPCC program is equally applicable here; there is no reason for EPA to depart from this position i n the CCR proposal. Given that professionals employed by a company are more familiar with their company's design and operation of disposal units, and because state registration and licensing arrangements ensure the sound professional judgment of all profes sionals, we believe that requiring "independence" of such professionals would add an unnecessary expense for utilities. Accordingly, EPA should eliminate the proposed requirements that these professionals be "independent" from the company for which they ar e certifying compliance.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision i s addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 1 

### Organization 1 

### : We Energies682



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



### Comment Excerpt Text: COMMENT: Certifications by independent registered professional engineers or hydrologists are appropriate to provide verification that the requirements of 40 CFR 257 are being met, as administered by state regulatory agencies. Profe ssional state registration for engineers and hydrologists (and therefore, compliance certification) is a cornerstone of state regulation and licensing programs which directly address public safety and compliance issues. These certifications have met long s tanding code requirements from transportation safety, building safety and environmental protection. The proposed EPA rulemaking should observe the same precepts as other air and water regulations in providing for professional certifications as a compliance methodology and recognize that there is no exceptional difference in this regard. In regard to EPA’s definition of independent professional engineer or hydrogeologist, the EPA should consider the opinion of licensed professional engineers and hydrogeologi sts, provided under their seal, constitutes adequate verification, regardless of their employment or contractual relationship with the utility. In Wisconsin, as in other states, professional registration is regulated by a state run board which ensures the safe, ethical and competent practice of licensed professionals. The EPA, by discounting the seal of any licensed professional engineer or hydrogeologist based on their affiliation, is attacking the integrity of state administered professional regulation an d licensing programs and the professionals themselves. Many utilities directly employ registered professionals to manage their CCR disposal facilities. These facility managers are normally in the best position to certify all aspects of the operation of the facility.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06252

- 16 

### Organization 1 

### : Minnkota Power Cooperative, Inc. (Minnkota) 

### Commenter 1 : John T. Graves Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Ex amine Context Assigned/Due:



### Comment Excerpt Text: EPA should allow registered professional engineers and hydrologists to make compliance683

certifications even if they are employees of the owner/operator of the disposal unit.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical

demonstration. Under t his rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06254

- 18 

### 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 Exce rpt Text: EPA should allow registered professional engineers and hydrologists to make compliance certifications even if they are employees of the owner/operator of the disposal unit.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified profess ional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 142 

### 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 

### Comment Excerpt Text: Kentucky strongly disagrees with this approach. Kentucky would modify its special waste regulations to include Subtitle D changes, thus giving liability coverage to the utilities and professionals, as well as giving citizens advance notice. Prior review by a profes sional staff at the state level eliminates misunderstandings or, worse, any attempts to cut corners. The states need a set of regulations similar to MSW landfill Subtitle D rules and funding from EPA.684

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regul ate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 19 

### 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 4.4.5.1.1 4.4.7.2 

### Comment Excerpt Text: Independent Profession Engineer or Professional Geologist certification without state oversight:

The Commonwealth has serious concern over allowing i ndependent professionals to self

- certify complex engineering documents without prior state review. The department urges EPA to require a Subtitle D permitting program similar to 40 CFR 239 for MSW landfills be adopted by the state before professionals may design and oversee the construction of liners and groundwater monitoring wells. This is especially important for variances and alternate designs. Kentucky strongly believes that a system of detailed technical regulation, application submittal, application review, public notice and final permit is essential to eliminate misunderstandings between the consultant, owner or operator, the department, neighbors and the general public. We urge the agency to seek additional statutory authority from Congress, if nece ssary, as described in Part I
A. in our comments. Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual t hat must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale be hind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 73 

### 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 does support the regulation of coal combustion residuals under the authority of Subtitle D. Kentucky does not support certifications by independent professiona l engineers685

and geologists, that would only be reviewed after construction, without a permit application review process. If the Subtitle D regulations are adopted, Kentucky will place the technical standards in 401 KAR 45:110 for landfills and surface impo undments. 401 KAR Chapter 45 already provides a permit application process, including technical standards, public notice and hearings. The department believes that such a framework is necessary to receive and give input from the state and public before the utilities spend a large amount of money on construction. Providing technical comments after construction is virtually worthless, and the state may be placed in a position of requesting demolition and reconstruction in the worst case, which would
double or triple construction costs.

Independent professional engineers and geologists would be in a position of increased legal liability without the state agency providing support. This process would put more burden on the Kentucky Board of Engineers and Land Su rveyors; and the Kentucky Board of Registration for Professional Geologists to investigate and enforce complaints.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

T he commenter is also referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enfo rced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 32 

### 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 Con text Assigned/Due:



### Comment Excerpt Text: 10. Qualifications and Independence of Professional Engineers and Hydrologists

a. Southern Company Concurs in Educational Requirements for Professional Engineer or Hydrologist.

EPA has defined “independent reg istered professional engineer or hydrologist” to mean

—686

a scientist or engineer who is not an employee of the owner or operator of a CCR landfill or surface impoundment who has received a baccalaureate or postgraduate degree in the natural sciences or eng ineering and has sufficient training and experience in groundwater hydrology and related fields as may be demonstrated by state registration, professional certifications, or completion of accredited university programs that enable that individual to make s ound professional judgments regarding groundwater monitoring, contaminant fate and transport, and corrective action. [Footnote 96: 75 Fed. Reg. at 35130.]

The design, construction, and operation of Southern Company’s CCB facilities are supervised by
indi viduals who exceed the educational requirements proposed by EPA. Southern Company has routinely used qualified groundwater scientists since 1986 to certify groundwater monitoring and related reports. This protocol has worked well to ensure the veracity of the information and sound judgment related to performance standards.

Southern Company does not support additional registrations by national organizations such as the American Institute of Hydrology and the National Ground Water Association, as a requirem ent for a qualified groundwater scientist. Southern Company believes that the specialized coursework and training listed by EPA, in conjunction with professional geologist and/or professional engineer registrations required by the states is sufficient to q ualify a groundwater scientist. The registrations by national organizations such as the American Institute of Hydrology and the National Ground Water Association are redundant with respect to coursework and state professional registrations.

b. EPA Should Clarify that “Independence” Requirement Does Not Preclude Reliance on Corporate Service Company Affiliates.

EPA has proposed to require certification of an “independent registered professional engineer or hydrologist” for various purposes pertaining to CCB facility siting, design and construction. [Footnote 97: See id. at 35193

- 99.] EPA makes the following observation about reliance on independent professionals:

In general, EPA expects that professionals in the field will have adequate incentive to pro vide an honest certification, given that the regulations require that the engineer not be an employee of the owner or operator, and that they operate under penalty of losing their license. [Footnote 98: See id. at 35194.]

EPA also expresses concern about the ability of a third

- party engineer to provide accurate assessments due to the fact that they are hired by an owner or operator. [Footnote 99: Id] EPA further asserts that “relying upon third party certifications is not the same as relying upon the

stat e regulatory authority, and will likely not provide the same level of ‘independence.’” [Footnote 100: Id]

In our view, reliance on licensed professionals in approving and implementing specific decisions and measures pursuant to flexible performance stand ards is sufficient to ensure veracity of information and sound judgments. Licensed professionals risk losing their licenses, and hence their livelihoods, if they make unsound and/or unethical judgments. Accordingly, licensed687

professionals have very strong incentives to provide accurate information and sound judgments.

The notion that a licensed professional would be seriously tempted to falsify a certification to please the facility owner is completely at odds with our experience. Nevertheless, for a vari ety of reasons, Southern Company maintains a separate service affiliate, i.e., SCS. SCS employees are not in the direct “chain of command” at any particular Southern Company facility, including any facility of Southern Company’s service territory utilities . They operate under a contract in essentially the same manner as a third party consulting firm. That means the SCS expert certifying results at a CCB facility of Southern Company is not subject to the supervision of the management executives of the compan y that owns and operates the facility in question. Southern Company believes this arrangement meets the “independence” requirement proposed by EPA and urges EPA to clarify if that is not the case.

Response: The Agency acknowledges and appreciates the comm ent, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualifie d professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06352

- 17 

### Organization 1 

### : Dayton Power & Light Company (DP&L) 

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



### Comment Excerpt Text: D. Under the current propos ed subtitle D regulatory option, USEPA requires the certification by an independent registered professional engineer providing verification that the provisions of the program are properly applied. DP&L does not agree that such certifying professionals must not be employees of the owner/operator of the CCR landfill or surface impoundment. USEPA appears to believe that employees of CCR management facilities do not possess the relevant experience and knowledge to be able to meet the applicable certification re quirements or they have conflicts of interest preventing them from providing such services in a meaningful manner. Such employees are equally subject to the same state registration and licensing obligations as independent parties and should be allowed to p rovide the requisite certification if qualified

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale b ehind this decision is addressed in the preamble.6 88



### 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 4.2.3.2 4.2.6 7.4.2 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 dem onstrates, 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 concept that a licensed professional engineer’s judgment will take care of the details in terms of proper CCR handling. It makes much more sense for EPA to confer with the utility industry and their service providers, like ourse lves, to identify specific fundamental performance criteria under a 4010 permit program. Proper handling of CCRs requires waste analysis to determine the specific characteristics of the particular waste stream (e.g., its potential for generation of hydroge n 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 appropriat e amount of moisture to control dust. Containment standards are necessary for transportation of dry CCRs.

It would be desirable for EPA to provide baseline criteria for waste acceptance and analysis to assure proper recognition of waste chemistry and phy sical characteristics. We realize that because the record for this rulemaking has not focused on describing good operating practices, EPA may need to re

- propose a Subtitle D permit program specific to CCR only or to proposed
modifications to the Subtitle D program tailored to the needs of CCR handling. In order not to delay progress, it would make sense for EPA to convene an advisory panel or work group of the regulated industry, Subtitle D service providers, state regulators (Illinois and Pennsylvania, for example, have developed standards regulating use and disposal of CCRs and would serve as resources for EPA)[Footnote 6: See, e.g., Pennsylvania Department of Environmental Protection, General Permit for Calcium Sulfate FGD material (physical testing an ch emical analysis requirements, permeability requirements, distance to groundwater, mixture requirements, application and compaction requirements, monitoring, storage requirements, general operating standards, conditions for beneficial use, recordkeeping and reporting); Illinois Environmental Protection Agency, Title 35, Subtitle B, Subchapter *, Part 816 (quality control procedures for CCR mixtures).] and experts in affected community and environmental groups. This group could engage in the kind of discussio n that would allow EPA to re

- propose promptly a fully developed
standard.

Response: The Agency acknowledges and appreciates the comment, the commenter is689

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be

i mplemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06409

- 18 

### Organization 1 

### : State of Alaska 

### Commenter 1 : Kristin J. Ryan Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.2 

### Comment Excerpt Text: 3. The proposed 40 CFR 257 subpart D regulations assign the responsibi lity for certifying the adequacy of the design, operation, monitoring, and closure of CCR landfills to independent registered professional hydrologists or engineers rather than to state regulatory agencies. The regulations are also designed "so that facili ties are able to implement the standards without interaction with regulatory officials". [Footnote 12: Federal Register, Volume 75, No. 118, June 21, 2010, page 35211.] The ADEC disagrees with this concept because the independent professional hydrologists or engineers who provide the required certification will be contracted by the facility owner/operator. At that point, the hydrologist or engineer is no longer truly "independent". This creates a conflict of interest in which those who do the certifying are paid by
those who need the certification.

The proposed regulations also create a confusing situation in which CCR landfill owners and operators will need to design, build, operate, and close their facilities in compliance with both Alaska's permitting pr ogram and the federal regulations. However, because the proposed Subtitle D regulations can be implemented without interaction with the ADEC, it is conceivable that a CCR landfill could be built without any contact with the ADEC. In that respect, the propo sed Subtitle D regulations undermine the ADEC's role as the regulatory authority for Subtitle D disposal facilities in Alaska.

The ADEC also notes that deferring to paid consultants to certify designs and plans that otherwise fall under state Subtitle D p ermitting programs contradicts the EPA's position regarding state Subtitle D permitting programs as stated in its proposed rule regarding the
Identification Of Non

- Hazardous Secondary Materials That Are Solid Waste. In that proposed rule, the EPA states th at "the states are the lead Agencies for implementing the non

- hazardous waste programs and, as such, the Agency wanted to make sure that state programs are not adversely affected by any decisions that are made by EPA, noting that we see a benefit to
deferr ing to state decisions, which are able to consider site

- specific information.” [Footnote 13: Federal Register, vol. 75, no. 107, June 4, 20 10, page 31855.] The self implementing regulations of the proposed Subtitle D option that require no interaction wit h state regulatory officials suggest an entirely different intent.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be690

implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qual ifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.
The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06409

- 21 

### Organization 1 

### : State of Alaska 

### Commenter 1 : Kristin J. Ryan Commenter Type: State Government
Classification: Substantive
Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.2 4.4.5.1.1 4.5 

### Comment Excerpt Text: In contrast, lining CCR landfills and surface impoundments will achieve the goal of minimizing damage cases associated with CCR disposal faci lities. Since both of the proposed options include the same design requirements, both options will yield the same outcome. As such, the Subtitle C option is again seen to be unnecessary. The ADEC therefore supports implementation of the Subtitle D option w ith the added provision for alternative liner designs and without the reliance upon design certifications by non

- regulatory entities. The ADEC encourages the EPA to seek the necessary revisions to RCRA that will allow CCR disposal facilities to be regulate d under the existing 40 CFR 258 regulations and thus be subject to EPA

- approved state permitting programs.

Response: The Agency acknowledges and appreciates the comment, t he commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble f or a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the propo sed rule’s, independent registered professional engineer or hydrologist. The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 44 

### Organization 1 

### : Wisconsin Department of Natural Resources (WI DNR) and Public Service691

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: 4.2.2 4.4.5.1.1 

### Comment Excerpt Text: EPA requests input on pages 35194 & 35197 of the preamble on whether independent 3rd party PE is sufficient guarantee that regulationss will be protective and whether other mechanisms would provide facility flexibility and /or verification. We do not agree with a self

- implementing approach in this proposed rule and believe that there is substantial value in a site investigation or siting process and State and/or federal agency review. Landfills are similar in magnitude to la rge public works projects, in that detailed review by a building permit review engineer is necessary to protect the public interest. The self

- implementing nature of the proposed rule is not sufficiently flexible or protective.

We do not agree with the as sertion that an independent 3rd party PE is a sufficient guarantee that solid waste disposal facilities are adequately designed, constructed, operated, or closed. Our concern is based on experience dealing with owners, contractors, and consultants, both in design and in construction. EPA states in the Preamble that it is concerned about the lack of uniformity or adequacy when comparing State programs. Professional engineers vary in their experience, training, and background in the varied aspects of practice that are needed to design and construct a solid waste facility. They also operate in a market where the need for jobs and market share work against doing more than the lowest common denominator. We have seen the problems that
can occur if owners of waste disposal facilities select engineering firms that are small, inexperienced, or operating outside of their past professional practice. We do not believe that leaving decisions about acceptability of design or construction solely in the hands of an
consultin g engineer employed by the landfill owner is adequate.

Landfills are large earthwork structures, and earthwork construction is difficult, time

- consuming, and subject to delays due to weather and availability of equipment and materials, all of which
resul ts in considerable pressure to complete projects. This can lead to shortcuts that are not advantageous. We find that interaction between regulatory staff, landfill owners, and technical
consultants is essential to assure that landfill construction meets th e intent of the facility design.

Response: The Agency acknowledges and appreciates the comment, t he commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is al so referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of th e individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or692

hydrologist. Th e rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06425

- 7 

### Organization 1 

### : City of Chesapeake, Virginia 

### Commenter 1 : Amar Dwarkanath Commenter Type: Local Government
Classification: Substantive
Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Chesapeake also opposes the use of independent, private sector professionals retained by the producers and disposers or CCR to predict whether specific beneficial use projects w ould endanger the human health or environment. The use of independent professionals to monitor compliance issues was another specific topic on which the EPA specifically requested comment. In this case, monitoring by the private sector is not well document ed and may have been deficient at key implementation points, and oversight during the construction of the site by state regulators was minimal.

Response: The Agency acknowledges and appreciates the comment, t he commenter is
referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional enginee r to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist. The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06529

- 55 

### Organization 1 

### : NiSource Corporate Services 

### Commenter 1 : Dale A. Helmers Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Use of Registered Professional Engineers

In those states that EPA decides have adequate Subtitle D CCR programs, it will be unnecessary to have registered professional engineers or hydrologists certify compliance with the CCR regulatory provisions. In those states, however, that do not have qualified programs to adm inister and enforce the federal Subtitle D rules, NiSource generally supports the concept set forth in the693

proposal of using registered professionals to certify compliance with various components of the rule. However, NiSource believes that EPA should not limit the list of registered professionals that have the expertise and authority to certify compliance with certain components of the rule. In particular, it is appropriate to have professional geologists certify compliance with groundwater monitoring stan dards, just as it is appropriate for professional engineers to certify compliance with the design of such units. EPA should review each requirement to determine whether the most appropriate professional was identified and specifically add professional geol ogists “or other qualified environmental professional” to the list set forth in Section 257.91(e)(2).

NiSource does not agree that professional engineers, hydrologists, geologists and other qualified environmental professionals must be independent (i.e., not an employee) of the owner/operator of the landfill or surface impoundment. NiSource believes it is inappropriate to require that such professionals be independent from the owner/operator of the disposal unit, because this condition imposes a significa nt barrier to meaningfully and cost

- effectively complying with the regulations, while providing little to no assurance that “independent” professionals have distinct interests from the owner/operator of the disposal unit.

These professionals, whether emp loyees or independent contractors, are all subject to state registration and licensing and have a strong incentive to maintain their licenses in good standing.
Such state

- licensing and registration programs will help to ensure that all professionals exerci se proper judgment about the operation of CCR landfills and surface impoundments. Accordingly, EPA should eliminate the proposed requirements that these professionals be “independent” from the company for which they are certifying compliance. This would be consistent with EPA’s approach to this issue under its Spill Prevention, Control, and Countermeasure requirements

Response: The Agency acknowledges and appreciates the comment, t he commenter is referred to Units V and IX of the preamble for discussions a s to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist. The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06532

- 44 

### Organization 1 

### : Southern Illinois Power Cooperative 

### Commente r 1 : Leonard F. Hopkins Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:694



### Comment Excerpt Text: Use of Registered Professional Engineers

In those states that EPA decides have adequate Subtitle D CCR programs, it will be unnecessary to have registered professional engineers (“PEs”) or hydrologists certify compliance with the CCR regulatory provisions. In those states, however, that do not ha ve qualified programs to administer and enforce the federal Subtitle D rules, SIPC generally supports the concept set forth in the proposal of using registered professionals to certify compliance with various components of the rule. However, SIPC believes that EPA should not limit the list of registered professionals that have the expertise and authority to certify compliance with certain components of the rule. EPA should review each requirement to determine whether the most appropriate professional
was id entified and specifically add professional geologists to the list set forth in Section 257.91(e)(2).

SIPC does not agree that PEs, hydrologists and geologists must be independent (i.e., not an employee) of the owner/operator of the landfill or surface im poundment. SIPC believes it is inappropriate to require that such professionals be independent from the owner/operator of the disposal unit, because this condition imposes a significant barrier to meaningfully and cost

effectively complying with the regula tions, while providing little to no assurance that “independent” professionals have distinct interests from the owner/operator of the disposal unit.

These professionals, whether employee or independent contractors, are all subject to state registration a nd licensing and have a strong incentive to maintain their licenses in good standing.
Such state

- licensing and registration programs will help to ensure that all professionals exercise proper judgment about the operation of CCR landfills and surface impoun dments. Accordingly, EPA should eliminate the proposed requirements that these professionals be "independent" from the company for which they are certifying compliance

Response: The Agency acknowledges and appreciates the comment, the commenter is
referre d to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “c ertify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06541

- 9 

### Organization 1 

### : Large Public Power Council (LPPC) 

### Commenter 1 : Brian H. Moeck, LPPC Environmental Task Force Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: • EPA should modify other elements of the Subtitle D co

- proposal Although LPPC supports the695

Subtitle D co

- proposal in general, and the D

- prime option in particular, there are certain elements of the Subtitle D approach that should be modified. First, EPA has proposed that facilities must verify th eir compliance with numerous design and operating requirements by obtaining a certification from an independent registered professional engineer. EPA asserts that such certifications are necessary for two reasons: first, in order for EPA “to conclude that these performance standards will meet the RCRA section 4004 protectiveness standard” of ensuring “no reasonable probability of adverse effects”; and second, “as a mechanism to facilitate citizen oversight and enforcement.” Id. at 35194. Although LPPC does not object to a certification requirement per se, it is unduly burdensome to require facilities who have registered professional engineers on staff to incur the additional expense of hiring outside third parties to provide the certifications, particularly for annual inspections. There is no reason to believe that a registered professional engineer will compromise his/her professional standards and responsibilities, will risk the legal consequences of submitting false statements, or will jeopardize his/her p rofessional license, merely because he/she is performing his/her professional services on behalf of his/her own employer. Indeed, EPA acknowledges that even a third party engineer “will still have been hired by the utility.” Id.

Moreover, to the extent th at EPA will be relying on a certification to conclude that a site

- specific deviation from technical criteria still meets applicable performance standards, the affiliation of the registered professional engineer providing the certification should not matter . The same is true with respect to EPA’s desire “to facilitate citizen oversight and enforcement.” As a practical matter, facilities will likely hire third party engineering firms to design new liner and leachate collection systems, as well as new groundwa ter monitoring systems. They will also likely rely on third party engineering firms to provide various demonstrations, such as those required under the location restrictions, or those required under the groundwater detection monitoring and
assessment monit oring programs. Facilities would do so either because the scope of services required would exceed their in

- house capabilities, or because they would prefer to shift the responsibility for inadequate or deficient designs to third parties and their insurers. Nevertheless,

an across

- the

- board requirement to hire third parties is neither warranted nor justified in the record, particularly with respect to annual inspections that would almost certainly be performed by qualified facility employees, if available.

R esponse: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06722

- 20 

### Organization 1 

### : Arkansas Electric Cooperative Corporation (AECC) 

### Commenter 1 : Jonathan Oliver Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:696



### Comment Excerpt Text: EPA should allow registered professional engineers and hydrologists to make compliance certifications even if they are employees of the owner/operator of the disposal unit.

Response: The Agency ackn owledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06815

- 28 

### 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: 4.4.5.1.1 4.4.5.2 4.4.7.2 4.4.7.4 4.4.7.8.2 

### Comment Excerpt Text: 18. EPA broadly solicits comment on the approach of relying on certifications by independent registered professional hydrologists or engineers of the adequacy o f actions taken at coal

- fired utilities to design and operate safe waste management systems.

Michigan currently has regulations that require state review and approval of design plans and construction certifications of solid waste disposal facilities. The se requirements include a certification by registered professional engineers. Our rules would remain in place and require an additional and potentially conflicting requirement with the proposed Subtitle D rule. Michigan would prefer that any rule adopted r etain the state's oversight role for CCR facilities, rather than relying on self

- certification by registered professionals.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed r ule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble. Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.697



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06956

- 12 

### Organization 1 

### : Tri

- State Generation & Transmission 

### Commenter 1 : Barbara A. Walz Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excer pt Text: D. EPA Should Allow Registered Professional Engineers And Hydrologists To Make Compliance Certifications Even If They Are Employees Of The Owner/Operator Of The Disposal Unit It is critical that any final Subtitle D program for CCRs allow for admi nistration of the Subtitle D regulations by qualified state regulatory programs. In those states that EPA decides have adequate Subtitle D CCR programs, it will be unnecessary to have registered professional engineers ("PEs") or hydrologists certify compli ance with the CCR regulatory provisions on behalf of the regulated owner/operator of the unit. Electric power producers will, of course, rely on these professionals for a review of all aspects of the design and operation of landfills and surface impoundmen ts, but there is no need for the regulatory "certifications" contemplated
under the self

- implementing Subtitle D option if a state is conducting a simultaneous and identical review of compliance with the regulatory provisions. In those states, however, tha t do not have qualified programs to administer and enforce the federal Subtitle D rules for CCR disposal Tri

- State G&T supports the concept set forth in the proposal of using registered professionals to conduct a review of the disposal units and certify th at design and operating criteria are being met and approve variances from the regulatory criteria, if appropriate, for particular CCR disposal units. With the limited exceptions identified below, Tri

- State G&T also supports the proposed credential requirem ents for these professionals. Clearly, someone without the required expertise should not be certifying that surface impoundments or landfills have been designed and are operating appropriately. However, Tri

- State G&T believes that EPA should add profession al geologists to the list of registered professionals that have the expertise and authority to certify compliance with certain of the Subtitle D operating standards. In particular, it is appropriate to have professional geologists certify compliance with g roundwater monitoring standards, just as it is appropriate for PEs to certify compliance with the design of such units.
Tri

- State G&T does not agree that PEs, hydrologists and geologists must be independent ( i.e.

, not an employee) of the owner/operator of the landfill or surface impoundment. As EPA notes, even though an independent professional will not be an employee of the power producer, they will still be hired as an independent consultant of the company. Tri

- State G&T believes it is inappropriate to r equire that such professionals be independent from the owner/operator of the disposal unit, because this condition imposes a significant barrier to meaningfully and cost

effectively comply with the regulations, while providing little to no assurance that " independent" professionals have distinct interests from the owner/operator of the disposal unit. Utilities and independent power producers typically employ a wide array of PEs and scientific staff. Most utilities employ a number of PEs, hydrologists, and geologists who often work698

exclusively with company

- managed CCR disposal units. These professionals typically possess the most relevant experience and knowledge about these types of disposal units, especially those units owned/operated by their employers. C ompany

- employed PEs, hydrologists and geologists are subject to the same type of state registration and licensing as those professionals that are not employed by these companies and have an equally strong incentive to maintain their licenses in good standi ng as those professionals that are "independent" of the utility or independent power producer. Such state

- licensing and registration programs will help to ensure that all professionals exercise proper judgment about the operation of CCR landfills and surfa ce impoundments. Notably, in a very similar regulatory program, EPA decided that not allowing PEs employed by facility owner/operators to certify regulatory compliance was inappropriate. In the re

promulgation of the Spill Prevention, Control, and Counter measures regulatory framework, EPA addressed the issue of whether PEs employed by facilities should be allowed to certify SPCC plans. The Agency concluded: We believe that most PEs, whether independent or employees of a facility, being professionals,
will uphold the integrity of their profession and only certify Plans that meet regulatory requirements. We also agree that an in

- house PE may be the person most familiar with the facility. EPA believes that a restriction of in

- house PE certification might place an undue and unnecessary financial burden on owners or operators of facilities by forcing them to hire an outside engineer. EPA's position in the SPCC program is equally applicable here and there is no reason for EPA to depart from this position in the CC R proposal. Given that professionals employed by a company are more familiar with their company's design and operation of disposal units, and because state registration and licensing arrangements ensure the sound professional judgment of all professionals, we believe that requiring "independence" of such professionals will add an expense for utilities without a benefit. Accordingly, EPA should eliminate the proposed requirements that these professionals be "independent" from the company for which they are

c ertifying compliance

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 32 

### Organization 1 

### : Nebraska Department of Environmental Quality (NDEQ) 

### Commenter 1 : David B. Haldeman Commenter Type: State Government
Classification: Substantive Comment Category:
Curr ent Task: Examine Context Assigned/Due:



### Comment Excerpt Text: NDEQ’s permit program defines a “qualified ground water scientist” in the same manner as proposed in EPA’s rule. Reliance on these professionals in implementing the proposed flexibility699

of performance standards is appropriate. In addition, if a state implements a permit program with these requirements it would be appropriate to allow the additional flexibility for alternative standards as allowed for municipal solid waste landfills found in 40CFR Part 258. The citizen lawsuit provision would still be available and a state permit program would provide an additional level of oversight on the facility and the professionals they utilize.

Response: The Agency acknowledges and appreciates the com ment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualifi ed professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.



### 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: 7.4.1 4.2.2 4.5 

### Comment Exc erpt Text: For these reasons, Maryland suggests a system like that used for municipal solid wastes under 40 CFR 258, where States must integrate the federal standards into the State program and seek program approval from EPA under 40 CFR 239. This eliminat es duplicative requirements and allows States to provide detailed technical review by hydrogeologists and engineers of their solid and industrial waste permitting units to proposed CCR disposal facilities, to ensure that these units are safely designed and operated. This is much more desirable than relying on third

- party certifications by consultants as would be the case under the proposed RCRA D option, whom may not as fully cognizant of the geotechnical conditions that exist in any given area, or be as
f amiliar with the historical operating conditions at a particular site.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### 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
Classif ication: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:700

Other Sections: 4.2.2 7.4.1 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 approval 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 indus trial 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 R CRA 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 V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR un der subtitle D of RCRA.



### 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 Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.2 3.1.2 7.4.1 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 the potential for State and federal regulators to work at cross purpose s, 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 safe ly 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 co nditions at a particular site, as State government scientists whom work in the area full

- time.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this sub title D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.701



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08220

- 18 

### Organization 1 

### : PowerSouth Energy Cooperative 

### Commenter 1 : Dr. Keith Stephens Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: EPA should allow registered professiona l engineers and hydrologists to make compliance certifications even if they are employees of the owner/operator of the disposal unit.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 32 

### Organization 1 

### : Ohio Environmental Protection Agency 

### Commenter 1 : Chris Korleski Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.4.5.1.1 4.4.5.2 4.4.7.2 4.4.7.8.2 4.4.8.4 

### Comment Excerpt Text: Ohio supports the approach of relying on certifications by appropriate professionals. Many of Ohio EPA’s regulations require such certification as part of permit applications, submittal of various documents, and monitoring reports. This type of requirement ensures that the owner has relied on persons with the appropriate credentials.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the

qu alifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08247

- 7 

### Organization 1 

### : Tucson Electric Power Company 

### Commenter 1 : Erik Bakken702

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



### Comment Excerpt Text:
EPA SHOULD ALLOW REGISTERED PROFESSIONAL ENGINEERS AND
HYDROLOGIST TO MAKE COMPLIANCE CERTIFICATIONS EVEN IF THEY ARE
EMPLOYEES OF THE OWNER/OPERATOR OF THE DISPOSAL UNIT

TEP requests that EPA allow compliance certifications by qualified employees such as registered professional engineers and hydrologist. These two groups of professionals are required to only certify plans that meet all regulatory requireme nts. The licensing arrangement for these professionals ensures that decisions are based on professional judgments. It makes no sense to require a company to use an outside professional when they already have professional staff as employees. To not allow co mpanies to utilize professional staff will result in increased costs, while not providing any identifiable benefit. TEP requests that EPA allow compliance certifications by qualified employees such as registered professional engineers and hydrologist.

Resp onse: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical

demon stration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08253

- 24 

### Organization 1 

### : Xcel Energy 

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



### Comment Excerpt Text:

12 R CRA Subtitle D Proposal Cmnments:
Professional certifications: A RCRA

- D proposal should rely first and foremost on state programs where such programs exist and have been proven effective. Absent an effective state program, certification by a licensed prof essional would suffice, although we reject the contention that certification by a licensed professional who happens to be employed by the utility is somehow less reliable or trustworthy. Licensed professionals are subject to a code of conduct irrespective of employer, and are subject to sanction and license revocation for inappropriate actions. EPA has previously acknowledged this in the SPCC rulemaking and that same concept applies here. Certifications by licensed utility professionals are equally valid an d should be accepted.

However, what EPA is proposing requires the certifying professional to inappropriately take on a703

quasi

- regulatory and enforcement role which would be better and more appropriately performed by the states. We are also concerned that this framework would place the certifying professional at great risk of being subject to nuisance lawsuits from project opponents, creating a scenario where some professionals may decline to be involved in such reviews. Once again, a RCRA

- D Prime program d esigned around state implementation and enforcement offers the best regulatory
framework.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or op erators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist. The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08787

- 39 

### 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: ASTSWMO notes that many States require certifications by appropriate registered professionals as part of permit applications, submittal of various documents, and monitor ing reports. This type of requirement ensures that the owner has relied on persons with the appropriate credentials. ASTSWMO understands the value of such certifications and supports the proposed requirement.

Response: The Agency acknowledges and appreci ates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators

technical demonstration. Un der this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist. The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08840

- 17 

### Organization 1 

### : Electric Power Generation Association 

### Commenter 1 : Douglas L. Biden704

Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt T ext: D. Use of Registered Professional Engineers and Geologists

As EPGA has suggested above, we believe that EPA can apply the necessary sections of RCRA (I.e., 4010(c) and 4005(c)) that will allow for state approved programs for administration of the proposed CCR disposal requirements under Subtitle D. Furthermore, in those states that have not obtained the approval from EPA, the owners and operators of CCR disposal facilities would certify compliance with the requirements under the self

- implementing S ubtitle D option utilizing registered professional engineers or geologists. Where the states are approved, it would not be necessary for use of a third

- party registered engineer or geologist to certify compliance, since the states would employ equally qual ified individuals to review compliance of permitted facilities. EPGA supports this use of registered professionals, as we recognize that someone without the necessary expertise would not be qualified to certify compliance with the design and operating

requ irements of the rules.

However, we question the need for independent, third

- party, contractors and the restriction of use of employees of the owner or operator of the facility. Most owners and operators of CCR disposal facilities, typically utilities and independent power producers, employ a number of registered professional engineers or geologists, many of which would work exclusively with the CCR disposal facility. These company

- employed professionals are subject to the same state registration and licens ing requirements as those independent, third

- party professionals. As professionals, they would have the same incentives to maintain their licenses in good standing with the state authorizing authority. Further, the state authorization would add the necessa ry oversight to ensure that the company employed professionals were held to the same standards as
the third

- party professionals, as those standards relate to the operation of those CCR facilities.

EPA has previously reached a similar conclusion in the re

- promulgation of the Spill Prevention, Control and Countermeasures (SPCC) regulations, as they addressed the necessity to require registered professional engineers to certify SPCC plans. They concluded that registered professionals would uphold the integrit y of their profession, whether company employed or independent, in certifying SPCC plans. They further concluded that the in

- house professional may be the most familiar with the facility, indicating that they would be the most qualified person to certify t he Plan. 67 Fed. Reg. at 47042, 47053.

Thus, EPGA suggests that EPA eliminate the requirement that an independent professional engineer or geologist be required for the specific certification requirements in the proposed rules.

EPGA further suggests that , in addition to the utilization of registered professional engineers and hydrologists, the proposed rules should be revised to also include the use of registered geologists and hydrogeologists. These registered professionals would be equally qualified to provide the necessary expertise for certification of specific requirements of the proposed rules705

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subti tle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit V of the preamble for a discussio n of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, in dependent registered professional engineer or hydrologist. The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08841

- 31 

### Organization 1 

### : Deseret Generation and Transmission Co

- operative 

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



### Comment Excerpt Text: EPA should allow registered professional engineers and hydrologists to make compliance
certi fications even if they are employees of the owner/operator of the disposal unit.

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

to Unit V of the preamble for a discussion of the Agency’s decision to modify the qu alifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist. The rationale behind this

decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08855

- 2 

### Organization 1 

### : Colstrip Energy Limited Partnership (CELP) 

### Commenter 1 : R. Lee Roberts Commenter Type: Electric Utility Facility
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 7.1.1.1 

### Comment Excerpt Text:

One Size Does Not Fit All Under Subtitle D CELP notes EPA's concerns about the inconsistency of state regulation unde r a subtitle D determination, but observes that states such as Montana, which are authorized by the EPA to administer the RCRA program, already require permits such as CELP's and CELP has operated pursuant to such a permit for over 20 years. The State of M ontana considered the nature of706

CELP's FBC ash in structuring CELP's Groundwater Pollution Control System Permit, and consciously decided that a liner was contra

- indicated. The appropriateness ofthat determination is supported by there having been no affec t on ground water quality beneath and around the landfill in over 20 years and was entirely consistent with EPA's conclusion discussed above that
site

- specific characteristics could lead to a conclusion that liners are not warranted, for example.
The broad brush approach now proposed by the EPA under subtitle D would appear to prevent states authorized by the EPA to administer RCRA from tailoring permit requirements to the site

specific characteristics the EPA observed to be warranted in its 2000 Regulatory Determination. Assuming EPA proceeds with RCRA subtitle D, regulation of CCR disposal it should differentiate programmatically between states authorized by it to administer the RCRA program, and states not so authorized. In Montana, permits such as CELP' s are issued as a result of a process which includes public participation, and contain permit conditions and requirements which the state enforces. There is neither a necessity nor reasonable way to accommodate layering into that process a requirement of P E certification that a permitee is indeed doing that which its state issued permit already requires, and the state already enforces. Such a proposal is almost certain to cause a conflict between what the state thinks should be required, and the position of a PE who risks losing their license if they don't insist on requiring a standard of "highest attainable practice" to be absolutely certain of meeting the EPA's generally undefined standard of "good engineering practices." The current EPA proposal creates (in states authorized to administer RCRA) a circumstance where any registered Professional Engineer can nullify a state regulatory agency determination of appropriate permit conditions and restrictions.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or op erators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist. The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 73 

### Organization 1 

### : Prairie State Generating Company, LLC (PSGC) 

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



### Comment Excerpt Text: Furthermore, EPA has determined that third party certification, notification to the state, and placement of information in the operating record provide adequate oversight to the self implementing requi rements. EPA has failed to adequately explain why this type of oversight is707

insufficient in this case.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how thi s subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit V of the preamble for a di scussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rul e’s, independent registered professional engineer or hydrologist. The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 78 

### Organization 1 

### : Prairie State Generating Company, LLC (PSGC) 

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



### Comment Excerpt Text: In those states that EPA decides have adequate Subtitle D CCR programs, it will be unnecess ary to have registered professional engineers or hydrologists certify compliance with the CCR regulatory provisions. In those states, however, that do not have qualified programs to administer and enforce the federal Subtitle D rules, PSGC generally suppor ts the concept set forth in the proposal of using registered professionals to certify compliance with various components of the rule. However, PSGC believes that EPA should not limit the list of registered professionals that have the expertise and authorit y to certify compliance with certain components of the rule. In particular, it is appropriate to have professional geologists certify compliance with groundwater monitoring standards, just as it is appropriate for professional engineers to certify complian ce with the design of such units. EPA should review each requirement to determine whether the most appropriate professional was identified and specifically add professional geologists to the li st set forth in Section 257.91(e)(2).

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or op erators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to708

“certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist. The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09274

- 16 

### Organization 1 

### : RRI Energy Inc. 

### Commenter 1 : S. Dixon Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: C. Company

- Employed Professional Engineers and Geologists Are Acceptable

RRI Energy endorses the requirement that certain studies or evaluations must be prepared by a Professional Engineer (PE) or Geologist (PC). These individuals ha ve the necessary training and experience to provide guidance and evaluation of critical assessments associated with the site selection and operation of a landfill.

However, RRI disagrees that such an individual must be independent (i.e., not an employee) of the owner! operator of the landfill or surface impoundment. Requiring that such professionals be independent from the owner/operator of the disposal unit, imposes a significant barrier to meaningfully and cost effectively complying with the regulations, while providing little to no assurance that "independent" professionals have distinct interests from the owner! operator of the disposal unit.

RRI Energy relies on the expertise of PEs employed by the company as well as "independent"
consultants. In fact , the company employs a PE who works exclusively with company

- managed CCR disposal units

- certifying a variety of operational reports and overseeing operations, including the installation of liner systems. Although independent PEs provide assistance, whic h is invaluable since the company operates seven CCR landfills, the company

- employed PE possesses the most relevant experience and knowledge about these sites. Company

- employed PEs are obviously subject to the same type of state registration and licensing as those professionals that are not employed by RRI Energy and have an equally strong incentive to maintain their licenses in good standing as those professionals that are "independent" of the company .. PADEP requires that the CCR landfill permit applicat ion, facility construction and annual operating report be certified by a professional engineer whom is a Registered Professional Engineer in accordance with the Pennsylvania Professional Engineer's Registration Law. The certification carries signification penalties, including the possibility of fines and imprisonment, for submitting false information or withholding pertinent information. As such, state

- licensing and registration programs and P ADEP requirements help to ensure that all professionals
exercise proper judgment about the operation of CCR landfills and surface impoundments.

Such state

- licensing and registration programs help to ensure that all professionals exercise proper judgment about the operation of CCR landfills and surface impoundments.709

I nterestingly, EPA reached the same conclusion in the SPCC regulatory program when it decided that not allowing PEs employed by facility owner/operators to certify regulatory compliance was inappropriate.

We believe that most PEs, whether independent or em ployees of a facility, being professionals, will uphold the integrity of their profession and only certify Plans that meet regulatory requirements. We also agree that an in

- house PE may be the person most familiar with the facility. EPA believes that a res triction of inhouse PE certification might place an undue and unnecessary financial burden on owners or operators of facilities by forcing them to hire an outside engineer, [Footnote 10: 67 Fed. Reg. 47042, 47053 Guly 17, 2002).]

Therefore, EPA should eli minate the proposed requirements that these professionals be "independent" from the company for which they are certifying compliance

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.
The commenter is also referred to Un it V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist. The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09349

- 22 

### Organization 1 

### : Santee Cooper 

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



### Comment Excerpt Text: As a practical matter, facilities will likely hire third party engineering firms to design ne w liner and leachate collection systems, as well as new groundwater monitoring systems. They will also likely rely on third party engineering firms to provide various demonstrations, such as those required under the location restrictions, or those required under the groundwater detection monitoring and assessment monitoring programs. Facilities would do so either because the scope of services required would exceed their in

- house capabilities, or because they would prefer to shift the responsibility for inad equate or deficient designs to third parties and their insurers. Nevertheless, an across

- the

- board requirement to hire third parties is neither warranted nor justified in the record, particularly with respect to annual inspections that would almost certain ly be performed by qualified facility employees, if available.710

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or op erators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist. The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09427

- 18 

### 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:



### Comment Excerpt Text: EPA should allow registered professional engineers and hydrologists to make compliance certifications even if they are employees of the owner/operator of the disposal unit.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discu ssion relating to the decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operato rs technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist. The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09951

- 22 

### 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:711



### Comment Excerpt Text: EPA broadly solicits comment on the approach of relying on certifications by independent registered professional hydrologists or engineers of the adequacy of actions taken at coal

- fired utilities to design and operate safe waste management systems.

We generally agree that the use of professional engineer certifications is proper for the design and operation of safe waste management systems. However, we disagree with need for "independent" professional engineers . In

- h ouse engineers have the resources and background to design the best management systems. In many cases, independents would be less qualified to review and approve utility plans. Professional Engineers do not put their license and livelihood
on the line.

Re sponse: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owne r or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist. The rationale behind this decision is ad dressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10166

- 10 

### Organization 1 

### : Consumers Energy Company 

### Commenter 1 : Gary A. Dawson Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The owner/operator's Registered Professional Engineers, hydrogeologists, geologists and other scientists should be authorized to certify compliance in their areas of expertise . EPA has no
basis for li miting the practice of licensed professionals.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to712

“certify” rather than the proposed rule’s, independent registered professional enginee r or hydrologist. The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 52 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG) et al. 

### Commenter 1 : James R. Roewer Commenter Type: Trade Associat ion
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: E. EPA Should Allow Registered Professionals To Make Compliance Certifications Even If They Are Employees Of The Owner/Operator Of The Disposal Unit

As discussed above, it is critical that any final Subtitle D program for CCRs allow for administration of the Subtitle D regulations by qualified state regulatory programs. In those states that EPA decides have adequate Subtitle D CCR progra ms, it will be unnecessary to have registered professionals certify compliance with the CCR regulatory provisions on behalf of the regulated owner/operator of the unit. Electric power producers will, of course, rely on these professionals for a review of a ll aspects of the design and operation of landfills and surface impoundments, but there is no need for the regulatory “certifications” contemplated under the
self

- implementing Subtitle D option if a state is conducting a simultaneous and identical review

o f compliance with the regulatory provisions. In those states, however, that do not have qualified programs to administer and enforce the federal Subtitle D rules for CCR disposal, USWAG supports using registered professionals to conduct a review of the dis posal units and certify that design and operating criteria are being met and to approve variances from the regulatory criteria, if appropriate, for particular CCR disposal units. With the limited exceptions identified below, USWAG also supports the propose d credential requirements for these professionals. Clearly, someone without the required expertise should not be certifying that surface impoundments or landfills have been designed and are operating appropriately. However, USWAG believes that
EPA should a dd professional geologists to the list of registered professionals that have the expertise and authority to certify compliance with certain of the Subtitle D operating standards. In particular, it is appropriate to have professional geologists certify comp liance with groundwater monitoring standards, just as it is appropriate for PEs to certify compliance with the design of such units.

USWAG does not agree that PEs, hydrologists, and geologists must be independent (i.e., not an employee) of the owner/opera tor of the landfill or surface impoundment. As EPA notes, even though an independent professional will not be an employee of the power producer, they will still be hired as an independent consultant of the company. Id. at 35194. USWAG believes that it is
i nappropriate to require that such professionals be independent from the owner/operator of the disposal unit, because this condition imposes a significant barrier to meaningful and cost

effective compliance with the regulations, while providing little to no assurance that “independent” professionals have distinct interests from the owner/operator of the disposal unit.713

Utilities and independent power producers typically employ a wide array of PEs and scientific staff. Most utilities employ a number of PEs, h ydrologists, and geologists who often work exclusively with company

- managed CCR disposal units. These professionals typically possess the most relevant experience and knowledge about these types of disposal units, especially those units owned/operated by t heir employers. Company

- employed PEs, hydrologists and geologists are subject to the same type of state registration and licensing as those professionals that are not employed by these companies and have an equally strong incentive to maintain their licens es in good standing as those professionals that are “independent” of the utility or independent power producer. Such state

- licensing and registration programs will help to ensure that all professionals exercise proper judgment about the operation of CCR la ndfills and surface impoundments.

Notably, in a very similar regulatory program, EPA decided that not allowing PEs employed by facility owner/operators to certify regulatory compliance was inappropriate. In the re

promulgation of the Spill Prevention, Con trol, and Countermeasures (“SPCC”) regulatory framework, EPA addressed the issue of whether PEs employed by facilities should be allowed to certify SPCC plans. The Agency concluded:

We believe that most PEs, whether independent or employees of a facility, being professionals, will uphold the integrity of their profession and only certify Plans that meet regulatory requirements. We also agree that an inhouse PE may be the person most familiar with the facility. EPA believes that a restriction of in

- house PE certification might place an undue and unnecessary financial burden on owners or operators of facilities by forcing them to hire an outside engineer.

67 Fed. Reg. 47042, 47053 (July 17, 2002).

EPA‘s position in the SPCC program is equally applicable her e; there is no reason for EPA to depart from this position in the CCR proposal. Given that professionals employed by a company are more familiar with their company‘s design and operation of disposal units, and because state registration and licensing arran gements ensure the sound professional judgment of all professionals, we believe that requiring “independence” of such professionals will add an unnecessary expense for utilities. Accordingly, EPA should eliminate the proposed requirements that these profes sionals be “independent” from the company for which they are certifying compliance.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engine er or hydrologist.
The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10495

- 55 

### Organization 1 

### : Earthjustice, et. al.714



### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 9.3.2 

### Comment Excerpt Text: In the present proposed rule, EPA has proposed a complicated scheme involving certifications by “independent professional engineers” who must deter mine if technical design standards are met, alternate performance standards are adhered to, proper notifications submitted, adequate demonstrations made, and ultimately, if statistically significant contamination is detected. To determine compliance with t he proposed regulations, state regulators must evaluate this avalanche of complex certifications. Given the complete absence of state oversight of the existing subtitle D criteria, it is unreasonable for EPA to credit the viability of this scheme. EPA

cann ot reasonably rely on states to verify extensive paperwork fueled by “self

- implementing regulations” and “independent” engineers working for the regulated parties in order to enforce the criteria effectively

-- especially given state funding constraints.

Se cond, EPA itself admits that in most cases, states will do no such thing. In the preamble, EPA comments that the considerably lower cost for subtitle D regulations in comparison to subtitle C results from a difference in the expected compliance rate, not f rom a difference in required engineering controls. EPA states “[t]he main differences in cost are based on the assumption that there will be less compliance or slower compliance under a RCRA subtitle D option. [Footnote 337: 75 Fed. Reg. 35139. EPA states, “The main differences in cost are based on the assumption that there will be less compliance or slower compliance under a RCRA subtitle D option.]. Remarkably, EPA methodically calculates the estimated magnitude of this noncompliance, and it
is substantia l. As spelled out in EPA’s Regulatory Impact Analysis with great specificity, EPA anticipates that only 52 percent of the coal ash in the U.S. will be generated in states that will adopt and enforce the subtitle D criteria. By EPA’s count, over 67 million tons of toxic ash will escape regulation each year, and this waste is generated in states with the highest disparity in race and income of residents living near coal ash dumps. With only 48 percent of coal ash generated in the U.S. disposed in states willi ng to adopt or enforce the regulations, it is impossible to meet the statutory standard of “no reasonable probability of adverse effects on health or the environment from disposal of solid waste.” [Footnote 338: 42 U.S.C. § 6944(a).].
Without criteria bein g adopted and enforced, the statutory distinction between allowable sanitary landfills and prohibited open dumps becomes meaningless.

In fact, EPA has greatly underestimated projected state noncompliance. Applying EPA’s own yardstick that states not curr ently requiring groundwater monitoring at surface impoundments “would not change their practices simply because EPA issued national rules,” [Footnote 339: RIA at 124.] the correct calculation of the percentage of coal ash in states without such regulatory requirements is 76 percent, not 52 percent. Thus it becomes even more unreasonable to adopt the proposed subtitle D option.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be715

implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist. The rationale behind this decision is address ed in the preamble.

The commenter also addresses some issues related to the cost benefit analysis. The commenter is therefore referred to Unit XII of the preamble and/or the cost benefit analysis which is available in the docket supporting this rule.



### C omment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10495

- 66 

### 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:

7. Subtitle D’s Reliance On Independent Professional Engineers In Lieu Of Government Oversight To Guarantee Regulatory Compliance Cannot Establish A Reasonable Probability That There Will Be No Adverse Impacts On Human Health Or The
Environment.

Subtitle D r elies almost entirely on the existence of “independent professional engineers and hydrologists” to evaluate a utility’s compliance with subtitle D criteria and inform the state in a timely and effective manner when problems arise. Subtitle D relies on util ity consultants to design an effective monitoring program, to notify the state when groundwater monitoring reveals contamination, to design remedial actions, and to certify that cleanup has been successful. However, at numerous sites, the performance of ex perts working for utility companies or private landfill owners has not always been timely, forthright or in the public interest. The questionable conduct of “independent” professional engineers and hydrologists at three recent coal ash
contamination sites was revealed in court filings. At the Colstrip, Montana site, the Town of Pines Superfund Site in Indiana and the Battlefield Golf Course in Virginia, [Footnote 361: See Fentress Families Trust v. Dominion Virginia Power, No. CL09

- 710 (Va. Cir. Ct.); Sears v. Virginia Electric & Power Co., No. Cl09

- 001914 (Va. Cir. Ct).] experts, working for and with the utilities, attempted to hide or obscure evidence of contamination from state regulators. While this behavior may not be representative of the consulting in dustry, there is ample evidence that
such behavior does exist and that it causes harm to health and the environment.

In fact, the existence of “independent” professional engineers knowledgeable about the threats posed by the unstable dam at the TVA plant in Kingston should be reason enough to reject this untenable scheme. If independent consultants could be trusted to make the disclosures necessary716

to protect human health and the environment, such consultants would have disclosed the danger
of a blowout i n Tennessee to the State or federal government well before it occurred. In view of subtitle D’s complete reliance on “independent” professional engineers for ensuring compliance with many critical parts of the regulations, this scheme fails completely to e stablish the probability that there will be no adverse impact on health or the environment.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, indepe ndent registered professional engineer or hydrologist. The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10739_DEN

- 051

- 6 

### Organization 1 

### : Sunflower Electric Power Corporation (Sunflower) 

### Commenter 1 : Paul Reynolds Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.3.2 

### Comment Excerpt Text: Also, Sunflower would encourage EPA to consider allowing profession al engineers (PEs), employed by a (utility) company to participate in the permitting process, rather than requiring independent PEs and other qualified environmental professionals, to provide the numerous certifications specified under the proposed rules. As licensed PEs, they (and their employers) are subject to the same professional responsibilities and liability as "independent" PEs.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble

Section 4.2.3.2

- EPA is interested in suggestions for mechanisms other than third

- party certification (see 4.2.3.1) that might provide facility flexibility and/or verification (35194) Total Number of Submissions: 11 Total Number of Comments: 13717



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06196

- 26 

### Organization 1 

### : Comite Dialogo Ambiental 

### Commenter 1 : Ruth Santiago Commenter Type: Ad vocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Industry generators of CCRs should be required to contribute to a fund to be used to promote safe handling of CCRs that would enable communities to hire truly independent professionals who would provide unbiased expertise. As with other funding schemes, industry contributions to the fund could be based on the amount of CCRs generated or coal burned.

Response: The Agency acknowl edges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 8 

### 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 concur that professionals working in this area, including regulatory staff at the state and federal level, should have appropriate education and relevant work experience related to the subject. The proposed rule should include a provision that the use of independent professional review is not required where a state regulatory program exists and those requirements can be met by professional staff,.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qual ified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06400

- 14 

### Organization 1 

### : Waste Management (WM) 

### Commenter 1 : Susan Briggum Commenter Type: Other Company718

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 4.2.6 7.4.2 10.5.2.3 

### Comm ent 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 f acilities 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 concept that a licensed professional engineer’s judgment will take care of t he details in terms of proper CCR handling. It makes much more sense for EPA to confer with the utility industry and their service providers, like ourselves, to identify specific fundamental performance criteria under a 4010 permit program. Proper handling of CCRs requires waste analysis to determine the specific characteristics of the particular waste stream (e.g., its potential for generation of hydrogen sulfide gas), its pH, water content and impact on slope stability, potential for heat generation and

p otential to clog leachate and gas collection lines. There needs to be a plan to handle the material in a way that controls dust, and uses the appropriate amount of moisture to control dust. Containment standards are necessary for transportation of dry CCRs

.

It would be desirable for EPA to provide baseline criteria for waste acceptance and analysis to assure proper recognition of waste chemistry and physical characteristics. We realize that because the record for this rulemaking has not focused on describ ing good operating practices, EPA may need to re

- propose a Subtitle D permit program specific to CCR only or to proposed modifications to the Subtitle D program tailored to the needs of CCR handling. In order not to delay progress, it would make sense for EPA to convene an advisory panel or work group of the regulated industry, Subtitle D service providers, state regulators (Illinois and Pennsylvania, for example, have developed standards regulating use and disposal of CCRs and would serve as
resources for EPA)[Footnote 6: See, e.g., Pennsylvania Department of Environmental Protection, General Permit for Calcium Sulfate FGD material (physical testing an chemical analysis requirements, permeability requirements, distance to groundwater, mixture requirements, application and compaction requirements, monitoring, storage requirements, general operating standards, conditions for beneficial use, recordkeeping and reporting); Illinois Environmental Protection Agency, Title 35, Subtitle B, Subchapter *, Part 816 (qua lity control procedures for CCR mixtures).] and experts in affected community and environmental groups. This group could engage in the kind of discussion that would allow EPA to re

- propose promptly a fully developed
standard.

Response: The Agency acknowl edges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators

technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to719

“certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist. The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06833

- 10 

### 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: Exam ine Context Assigned/Due:
Other Sections: 4.6.1 4.4.7.8.1 4.4.7.9.1 4.4.5.1.2 4.4.3 

### Comment Excerpt Text: Significant problems with the Subtitle D options include: unrealistically short closure timeframes for CCR surface impoundments that must be closed; unwarranted application of location restrictions to existing CCR surface impoundments; inclusion of inappro priate constituents in the proposed groundwater monitoring program; failure to allow for alternate liner systems for new CCR disposal facilities; failure to allow professional engineers that are employees of the owner/operator of the disposal unit to make compliance certifications; and an overly broad definition of "CCR Surface Impoundment or impoundment", which inappropriately captures impoundments that arc not designed to manage or store CCRs.

Response : The Agency acknowledges and appreciates this comm ent, however the commenter is referred to other sections (i.e., volumes) of the Response to Comment document that relate more directly to these issues.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06833

- 21 

### Organization 1 

### : Dominion Resources Services, Inc. 

### Commen ter 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: EPA should allow registered Professional Engineers to make compliance certifications even if they are employees of the Owner/Operator of the disposal unit. As stated previously, we believe
that states should be allowed to administer and enforce the federal Subtitle D rule for CCRs. However, in the event that the final CCR rules are self implementing and a PE certification is required, then we believe that companies should be allowed to use employees of the company and not be required to use third parties fo r the PE certification. Dominion does not agree that registered PEs must be independent (i.e., not all employee) of the owner/operator of the landfill or surface impoundment. As EPA notes, even though an independent PE will not be an employee of the power producer, they will still be hired as an independent consultant of the company. 75 Fed. Reg. at 35194. We believe that it is inappropriate to require that such PEs be independent720

from the owner/operator of the disposal facility, because this condition impo ses a significant barrier to meaningful and cost

- effective compliance with the regulations, while providing little to no assurance that 'independent" professionals have distinct interests from the owner/operator of the disposal unit.

Utilities typically employ a wide array of PEs and scientific staff. Most utilities employ a number of PEs who often work closely with company

- managed CCR disposal facilities. These professionals typically possess the most relevant experience and knowledge about these types o f disposal units, especially those units owned/operated by their employers. Company

- employed PEs are subject to the same type of state registration and licensing as those PEs that are not employed by the company, and have an equally strong incentive to mai ntain their licenses in good standing as those professionals that are "independent" of the company. Such state

- licensing and registration programs will help to ensure that all professionals exercise proper judgment about the operation of CCR landfills and surface impoundments. Notably, in the re

- promulgation or the Spill Prevention, Control, and Countermeasures (SPCC) regulatory framework, a similar regulatory program, EPA concluded the following:

"We believe that most PEs, whether independent or employees of a facility, being professionals, will uphold the integrity of their profession and only certify Plans that meet regulatory requirements. We also agree that an in

- house PE may be the person most familiar with the facility. EPA believes that a restrictio n on in

- house PE certification might place an undue and unnecessary financial burden on owners or operators of facilities by forcing them to hire an outside engineer." EPA's position in the SPCC program is equally applicable here, and there is
no reason fo r EPA to depart from this position in the CCR rule. Accordingly, EPA should eliminate the proposed requirement that certifying PEs be "independent" from the company for which they are certifying compliance.

Response: The Agency acknowledges and appreciate s the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators

technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist. The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06863

- 40 

### Organization 1 

### : Avista Corp. 

### Commenter 1 : Darrell Soyars Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:721



### Comment Excerpt Text:

Avista does not agree that PEs, hydrologists, and geologists must be independent ( i.e. , not an employee) of the owner/operator of the landfill or surface impoundment. As EPA notes, even though an independent professional will not be an employee of the power producer, they will still be hired as an independent consultant of the company. Id . at 35194. Avista believes that it is inappropriate to require that such professionals be independent from the owner/operator of the disposal unit, because this condition imposes a signif icant barrier to meaningful and cost

effective compliance with the regulations, while providing little to no assurance that “independent” professionals have distinct interests from the owner/operator of the disposal unit. Utilities and independent power p roducers typically employ a wide array of PEs and scientific staff, hydrologists, and geologists who often work exclusively with company

- managed CCR disposal units. These professionals typically possess the most relevant experience and knowledge
about thes e types of disposal units, especially those units owned/operated by their employers. Company

- employed PEs, hydrologists and geologists are subject to the same type of state registration and licensing as those professionals that are not employed by these co mpanies and have an equally strong incentive to maintain their licenses in good standing as those professionals that are “independent” of the utility or independent power producer. Such state

licensing and registration programs will help to ensure that all professionals exercise proper judgment about the operation of CCR landfills and surface impoundments. Notably, in a very similar regulatory program, EPA decided that allowing PEs employed by facility owner/operators to certify regulatory compliance was a ppropriate. In the re

- promulgation of the Spill Prevention, Control, and Countermeasures regulatory framework, EPA addressed the issue of whether PEs employed by facilities should be allowed to certify SPCC plans. The Agency concluded:
We believe that mos t PEs, whether independent or employees of a facility, being professionals, will uphold the integrity of their profession and only certify Plans that meet regulatory requirements. We also agree that an in

- house PE may be the person most familiar with the
f acility. EPA believes that a restriction of in

- house PE certification might place an undue and unnecessary financial burden on owners or operators of facilities by forcing them to hire an outside engineer. 67 Fed. Reg. 47042, 47053 (July 17, 2002).
EPA’s position in the SPCC program is equally applicable here; there is no reason for EPA to depart from this position in the CCR proposal. Given that professionals employed by a company are more familiar with their company’s design and operation of disposal un its, and because state registration and licensing arrangements ensure the sound professional judgment of all professionals, we believe that requiring “independence” of such professionals will add an unnecessary expense. Accordingly, EPA should eliminate th e proposed requirements that these professionals be “independent” from the company for which they are certifying compliance. With the limited exceptions identified below, Avista also supports the proposed credential requirements for these professionals. C learly, someone without the required expertise should not be certifying that surface impoundments or landfills have been designed and are operating appropriately. However, Avista believes that EPA should add professional geologists to the list of registere d professionals that have the expertise and authority to certify compliance with certain of the Subtitle D operating standards. In particular, it is appropriate to have professional geologists certify compliance with groundwater monitoring standards, just as it is appropriate for PEs to certify compliance with the design of such units.722

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule wil l be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit V of the preamble for a discussion of the Agenc y’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent regi stered professional engineer or hydrologist. The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06912

- 15 

### 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: Also, SEPC encourages EPA to consider allowing professional engineers (PEs), employed by a (utility) company to par ticipate in the permitting process. As licensed PEs, they (and their employers) are subject to the same professional responsibilities and liability as “independent”
PEs.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional enginee r to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07047

- 28 

### Organization 1 

### : Great River Energy 

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



### Comment Excerpt Text: GRE feels EPA should allow registered professionals to make compliance certifications even if they are employees of the organization owning the disposal unit. When the technical professional places the certification on the compliance requirement they are operating to the standards of their723

profession. We believe the CCR rules should reflect what was done under the SPCC program for
certifications.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualificat ions of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydro logist.
The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 79 

### Organization 1 

### : Prairie State Generating Company, LLC (PSGC) 

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



### Comment Excerpt Text: PSGC does not agree that professional engineers, hydrologists and geologists must be independent (i.e., not an employee) of the owner/operato r of the landfill or surface impoundment. PSGC believes it is inappropriate to require that such professionals be independent from the owner/operator of the disposal unit, because this condition imposes a significant barrier to meaningfully and cost

- effect ively complying with the regulations, while providing little to no assurance that "independent" professionals have distinct interests from the owner/operator of the disposal unit. These professionals, whether employees or independent contractors, are all s ubject to state registration and licensing and have a strong incentive to maintain their licenses in good standing.
Such state

- licensing and registration programs will help to ensure that all professionals exercise proper judgment about the operation of CC R landfills and surface impoundments. Accordingly, EPA should eliminate the proposed requirements that these professionals be "independent" from the company for which they are certifying compliance. This would be consistent with EPA's approach to this issu e under its Spill Prevention, Control, and Countermeasure requirements.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualificati ons of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrol ogist.
The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09349

- 21 

### Organization 1 

### : Santee Cooper 

### Commenter 1 : Jay Hudson724

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



### Comment Excerpt Text: It is unduly burdensome to require facilities who have registered professional engineers on staff to incur the additional expense of hiring outside third parties to provide the certifications. There is no reason to believe that a registered professional engineer will compromise his/her professional standards and responsibilities, will risk the legal consequences of submitting false statements, or will jeopardize his/her professio nal license, merely because he/she is performing his/her professional services on behalf of his/her own employer. Indeed, EPA acknowledges that even a third party engineer "will still have been hired by the utility." Moreover, to the extent that
EPA will b e relying on a certification to conclude that a site

- specific deviation from technical criteria still meets applicable performance standards, the affiliation of the registered professional engineer providing the certification should not matter. The same is true with respect to EPA's desire "to facilitate citizen oversight and enforcement."

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional eng ineer or hydrologist.
The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10498

- 18 

### Organization 1 

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

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



### Comment Excerpt Text: `g. Flexibility Must be Provided Throughout the Subtitle D Prime Option Similar to 40 C.F.R.
Part 258

The regulati ons set forth in 40 C.F.R. part 258 establish the requirements and criteria applicable to MSWLFs. In recognition of the need to ensure that these federal regulations provided flexibility to reflect state and site

- specific conditions, the part 258 requireme nts established alternate performance standards that are enforced by a state permitting process. See 75 Fed. Reg. 35194. The subtitle D prime option is largely modeled after the part 258 requirements. However, in many instances EPA has not carried over the flexibilities provided in 40725

C.F.R. part 258 because of its inability to directly enforce the subtitle D prime option, require state permits, or approve state programs. Indeed, EPA acknowledged that its lack of authority “complicates the Agency’s ability to develop regulations that can be effectively implemented and tailored to individual site conditions.” 75 Fed. Reg. 35160. EPA has attempted to provide a degree of flexibility by allowing facilities to deviate from the minimum requirements of certain
rul e provisions provided that they are certified by an independent registered professional engineer or hydrogeologist. The provisions allowing for an alternative certification process, however, are limited. Consequently, the subtitle C option does not provide sufficient flexibility
to address state

- specific and sitespecific conditions. At a minimum, the subtitle D prime option should include the same flexibilities found in part 258. Such flexibilities were deemed necessary to effectively regulate MSWLFs, and t here is no reason to believe that they will not be necessary to effectively regulate CCR landfills and surface impoundments.

The subtitle D prime option “relies heavily” on citizen enforcement. Id. at 35211. EPA has tried
to draft a “self

- implementing” su btitle D prime option that facilitates, and in some instances “increases” citizen enforcement. Id. at 35194, 35208. In many instances, EPA concluded that the flexibilities in part 258 would make citizen enforcement “more difficult” and consequently
omitted them from the subtitle D prime option. Id. at 35205. In other situations, EPA did not incorporate some of the flexibilities because, without guaranteed state oversight, they could be subject to abuse. See id. at 35197, 35296. The result, however, is a rig id rule that does not allow
for states or facilities to address site

- specific conditions or concerns.

A prime example of a necessary flexibility is the provision allowing the use of an alternative liner system which is discussed more fully above in sectio n VI.a.ii. Part 258 requires the installation of a composite liner in a MSWLF. 40 C.F.R. § 258.40. However, an approved state may evaluate and approve the use of alternative liner systems provided that specified
concentration values will not be exceeded in the uppermost aquifer at the point of compliance. Id. FDEP’s approved subtitle D program allows for the use of a double liner system in place of a composite liner system. See Rule 62

- 701.400, F.A.C. A number of FCG members have already
installed double l iners at their facilities and others are awaiting permits approving plans to install a double liner in the lateral expansion of their existing CCR landfills. As discussed more fully above, there are state

- specific concerns that lead to the development of t his alternative, not least of which is the additional protection to groundwater which is afforded by the double liner system. By not incorporating this flexibility into the subtitle D prime option EPA is preventing the use of equivalent alternative liner s ystems that are necessary to address state and site

- specific conditions.[Footnote 15: This will also impact off

- site disposal of CCRs. At least one FCG member disposes a substantial volume of CCRs in off

- site commercial MSWLFs in Florida. Proposed Rule ind icates that CCRs shipped off

- site for disposal must to be sent to a facility that meets the requirements of the subtitle D option. 75 Fed. Reg 35210. However, many of the MSWLFs in Florida were constructed with double liners in accordance with FDEP regulat ions. Consequently, these facilities will be unable to accept CCRs for disposal.] There is no rational basis why MSWLFs constructed in accordance with an EPA

- approved state MSWLF program should not be able to accept CCRs for disposal. Furthermore, EPA igno res valid state regulations that have been developed under an EPA

- approved subtitle D program that may easily be transferable to CCR management units.726

The proposed groundwater point of compliance is another provision that demands flexibility for

states an d facilities to modify the proposed rules. As discussed more fully above in section VI.a.iii., the FCG believes that the proposed point of compliance at the waste boundary is a drafting error. Assuming that EPA intended to carry over the existing part 258 point of compliance (i.e., no more than 150 meters from the waste boundary), flexibility is still required to reflect existing state regulations promulgated pursuant to 40 C.F.R. § 257.3

- 4. As noted above, several FCG members have FDEP permitted zones of d ischarge with a point of compliance that extends to the property boundary of the facility. In some instances, this may exceed 150 meters. Consequently, if the subtitle D prime option is implemented without a provision for an alternative point of compliance , some FCG members could be in immediate non

- compliance despite having operated for many years under a state approved zone of discharge. All of the FCG member facilities have extensive groundwater monitoring systems in place that are designed to
ensure tha t water quality standards or criteria are not violated outside the zone of discharge. Under Florida’s groundwater protection regulations, there have been no off

- site impacts to drinking water in Florida associated with the operation of CCR landfills or sur face impoundments. Florida’s groundwater protection program works, and there must be sufficient flexibility in the subtitle D prime option to allow for the continued application of these regulations. There are numerous other flexibilities that are provided in part 258 that must be carried over into the subtitle D prime option.[Footnote 16: For example, 40 C.F.R. §§ 258.40, 258.50, 258.51, 258.53

- 258.55, 258.57, 258.58, 258.60, 258.61, all provide flexibilities that may be utilized by facilities and states .] Flexibility must also be built into the new requirements. For example, the subtitle D prime option requires that new CCR landfills and surface impoundments and lateral expansions “must be constructed with a base that is located a
minimum of two feet abo ve the upper limit of the natural water table.” 75 Fed. Reg. 35241 (proposed 40 C.F.R. § 257.60). This requirement is too restrictive in Florida due to the shallow depth of groundwater in many areas. This provision, therefore, must be removed or revised to provide some flexibility for states such as Florida. Over the years, approved states such as Florida, have implemented the part 258 requirements and have utilized the available flexibilities to modify the basic part 258 requirements to tailor regulations that address state and site

- specific concerns while still being protective of human health and the environment. In Florida, many of these modifications reflect state groundwater conditions and concerns. It is reasonable to assume that such provisions, as a pplied to CCR landfills and surface impoundments, will also require modification. Without these flexibilities, the subtitle D prime option is impractical and will not be as effective at regulating CCR disposal as it otherwise might be. At a minimum, approv ed states such as Florida should be allowed to make modifications to the proposed Part 257 requirements similar to those made to Part 258 requirements.

The proposed certification process, while helpful, is an inadequate substitute for state regulation
and oversight. As discussed below, rather than try to develop a regulatory construct designed to compensate for its lack of authority, EPA should seek appropriate authority from Congress to administer a program modeled after the existing MSWLF program, includ ing the ability to approve state regulatory programs implementing the CCR regulations.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be727

implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit V of the preamble for a discussion of the A gency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist. The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10498

- 19 

### Organization 1 

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

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



### Comment Excerpt Text: VII. Subtitle D Regulations Should Provide for State Administration of a CCR Regulatory Program

Imp lementation of a CCR program modeled on the existing MSWLF program, including a state program approval process, will avoid many of the deficiencies in the subtitle D prime option. Additionally, the approval of state programs will help avoid the unnecessary duplication of existing state regulations and regulatory uncertainty associated with a dual regulatory approach.

EPA recognized Congress’ admonition against duplication of efforts by other Federal and state agencies when regulating CCRs in the 1993 regul atory determination. 58 Fed. Reg. 42477. In 1993, EPA found that subtitle C regulations, particularly the need to obtain a subtitle C permit, would unnecessarily duplicate existing state regulations. Id. In the 2000 regulatory determination, EPA again note d the potential duplication of existing state regulations as a basis for not regulating CCRs under subtitle C. The potential for unnecessary duplication of state regulation is equally relevant under subtitle D prime regulation of CCRs and even more likely given the increasing trend in state regulation of CCR disposal. As noted in section IV.a. above, state regulation of CCR disposal has steadily increased since the final regulatory determination was published in 1993. Notably, The EPA/DOE Report found that the majority of new landfills and surface impoundments are constructed with liners and groundwater monitoring systems.

The 2009 ASTSWMO survey similarly found that the majority of states that generate CCR’s have permit programs in place for CCR landfills and surface impoundments. See 75 Fed. Reg. 35152. Consequently, Congress’s admonition against the duplication of state efforts is even more relevant today. Another unwanted consequence of federal regulation will be the uncertainty and inconsistency created with facilities having to comply with two regulatory programs (state and federal). These concerns are particularly relevant in approved states that operate a modified MSWLF program. As noted above, Florida implements an EPA approved MSWLF program that
has been modified to reflect certain state conditions and concerns. At some facilities, FDEP728

applies some of its modified MSWLF regulations to FCG member CCR landfills. In the absence of flexibilities allowing similar modifications to the proposed subtitle D prime option, however, some of FDEP’s modified regulations may not satisfy the subtitle D prime requirements. The task of determining whether such modified state regulations are consistent with the proposed subtitle D prime regulations will be difficult an d complex, and the inherent uncertainty will likely result in unnecessary and costly litigation. Frustratingly, at the end of the day there will be no additional environmental benefit associated with this exercise. EPA failed to provide any explanation why existing Part 258 regulations, or equivalent state regulations, are not also adequate for CCR landfills. If a facility is already complying with some of Florida’s EPA

approved MSWLF requirements, there is no reason why those requirements should not also b e appropriate for CCR landfills and surface impoundments.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10739_DEN

- 051

- 6 

### Organization 1 

### : Sunflower Electric Power Corporation (Sunflower) 

### Commenter 1 : Paul Reynolds Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.3.1 

### Comment Excerpt Text: Also, Sunflower would encourage EPA to consider allowing professional engineers (PEs), empl oyed by a (utility) company to participate in the permitting process, rather than requiring independent PEs and other qualified environmental professionals, to provide the numerous certifications specified under the proposed rules. As licensed PEs, they (a nd their employers) are subject to the same professional responsibilities and liability as "independent" PEs.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Additional Discussion on the Agency’s decision to promulgate the term, qualified professional engineer rather than the proposed “Independent registered professional engineer or hydrologist.

Reliance on Certification by Independent Qualified Professional Engineers729

As previously discussed, the vast majority of commenters were highly skeptical of a regulatory approach that substituted state oversight with an owner or operator hiring a consultant or professional, i.e., an independent registered professional engineer or hydrologist, to certify compliance with a federal regulatory requirement and posting that information on an internet site. More specifically, commenters were concerned that relying almost entirely on professional certifications for ensuring regulatory co mpliance did not seem like a reliable way to provide for protection of human health and or the environment.

As explained in Unit IV.A, EPA is issuing national minimum criteria under subtitle D to put in place the technical requirements the Agency has de termined are necessary to protect human health and the environment from the disposal of CCRs in surface impoundments and landfills, at this time, while the Agency completes its Bevill Determination. EPA is relying on the certification in this context to pa rtially compensate for one of the more significant limitations under the authorities currently applicable to CCRs: the lack of any guaranteed regulatory oversight mechanism. However, EPA disagrees that the rules rely "almost entirely" on professional engi neers to protect human health and the environment. The final rule relies on multiple mechanisms to ensure that the requirements in this rule are properly implemented and fully adhered to by the regulated community. As one part of this multi

- mechanism

appro ach, owners or operators must obtain certifications by qualified individuals verifying that the technical provisions of the rule have been properly applied and met. However, a more significant component supporting EPA's determination that the technical req uirements will achieve the level of protection required under section 4004(a) is the performance standards that the rules lay out. These standards impose specific technical requirements, and, even where they provide flexibility, will operate to significant ly constrain the facility's activities and discretion. The certifications required by the rule supplement these technical requirements, and while they are important, they are not the sole mechanism ensuring regulatory compliance.

The rule also contains a n umber of provisions requiring the owner or operator to document their compliance with the rule’s technical requirements, and to post those documents on a publically available website in a timely and transparent manner. The rule also requires owners

or oper ators to notify State Directors of numerous actions, including that certified demonstrations have been completed. This transparency will facilitate citizen and state oversight and overall enforcement of the requirements. Finally, the rule establishes spe cific time frames by which these actions must occur, including time frames by which facilities must document compliance with the various technical requirements in the rule. Time frames have been established for: (1) technical compliance demonstrations ma de by the owner or operator; (2) certifications made by a qualified professional engineer verifying the technical accuracy and veracity of the compliance demonstration; (3) notifications made to the State Director; (4) submittals (e.g., data, reports and o ther documentation) to the operating record; and (5) postings to the owner or operator’s publicly accessible internet site. Further details pertaining to all of these requirements can be found in the Recordkeeping, Notification, and Posting of
Information to the Internet section of the regulations published in this rule.

Changes to the Definition of Independent Registered Professional Engineer or Hydrologist730

EPA proposed to define “ independent registered professional engineer or hydrologist ” to mean a scientist or engineer who is not an employee of the owner or operator of a CCR landfill or CCR surface impoundment, who has received a baccalaureate or post

- graduate degree in the natural sciences or engineering, and who has sufficient training and experience in groundwater hydrology and related fields as may be demonstrated by state registration, professional certifications, or completion of accredited university programs that enable that individual to make sound professional judgment regarding the technical information for which a certification under this subpart is necessary.

Many comments were received on the definition. Some commenters agreed with the proposed definition, but most commenters argued that significant changes were needed. These changes included removing the requirement that the engineer be “independent,” adding the word “qualified,” and limiting the ability to make certifications to “licensed” professional engineers.
Still other commenters felt that EPA should broaden the qualifications beyond a professional engineer or hydrologist, to include geologists, hydrogeologists, groundwater scientists or “other qualified environmental professionals” among the individuals able to certify regulatory

demonstrations. By far the issu e receiving the most comment was whether the Agency should require a professional engineer to be “independent.” Commenters disagreed with EPA that the certification must be made by an independent registered professional engineer (i.e., not an employee of the owner/operator of the CCR unit). Commenters argued that most utilities employ a number of professional engineers that typically possess the most relevant experience and knowledge about the unit, and that company

- employed engineers and hydrologists wer e in a much better technical position to certify technical provisions of the rule were being met. Furthermore, commenters asserted that these professionals would be subject to the same state registration and licensing requirements as those not employed by the facility and would have an equally strong incentive to maintain their licenses in good standing as those that are independent of the utility., These commenters also pointed to several EPA rulemakings in which EPA allowed “qualified” professional engi neers to make the kind of certifications contemplated by this rulemaking, without requiring that they be “independent. ” Commenters also contended that state licensing and registration programs help to ensure that all professionals exercise proper judgment or “independence” regarding the operation of CCR landfills and CCR surface impoundments. Similarly, commenters claimed that a professional engineer without the required expertise would refuse to make any certifications for which they were not qualified. Some commenters suggested that EPA provide some criteria requiring demonstrated experience and training. Commenters also took issue with the fact that the definition focused entirely on groundwater hydrology and failed to include training or experience in other areas that would also be necessary to effectively certify specific technical criteria of the rule (e.g., structural integrity, composite liner design).

The definition EPA proposed for “independent registered professional engineer or hydrologist ,” focused on three components that were intended to define the minimum qualifications necessary to independently verify that a specific technical standard was met and to provide731

sufficient objectivity to reduce the opportunity for abuse. These components were: (1) the individual was a scientist or engineer by academic training or education; (2) the individual was not an employee of the owner or operator of the CCR disposal unit; and (3) the individual had sufficient training in groundwater hydrology or related fields. The proposed definition did not require the individual to be licensed professional engineer or hydrologist; instead the Agency prohibited the individual providing the certification from being an employee of the owner or operator of the CCR unit, reasoning that this requirement would provide some degree of independent verification of facility practices. 1 The Agency stated that the availability of meaningful independent verification was critical to EPA’s ability to conclude that these perform ance standards laid out in the proposed rule would meet the RCRA section 4004 protectiveness standard.

In the course of developing this final rule, the Agency concluded that it needed to better define the connection between the technical requirements of th e rule and the technical qualifications an individual must possess to certify the demonstrations being made by the owner or operator of the CCR disposal unit. In doing so, the Agency looked for direction in the following rules, the
“Resource Conservation and Recovery Act (RCRA) Burden Reduction Initiative” (71 FR 16826, April 4, 2006) and the “Oil Pollution Prevention and Response Non

- Transportation

- Related Onshore and Offshore Facilities Rule (67 FR 47042, July 17, 2002.) In both of these actions, the Ag ency came to similar conclusions. First, that professional engineers, whether independent or employees of a facility, being professionals, will uphold the integrity of their profession and only certify docume nts that meet the prescribed regulatory require ments; and that the integrity of both the professional engineer and the professional oversight of boards licensing professional engineers are sufficient to prevent any abuses. See for example: 67 FR 47084, July 17, 2002. And second, that in house professi onal engineers may be the persons most familiar with the design and operation of the facility and that a restriction on in

- house professional certifications might place an undue and unnecessary financial burden on owners or operators of facilities by forci ng them to hire an outside engineer.

Reviewing these other regulatory actions and the Agency’s rationale for making its decisions, has lead the Agency to a similar conclusion with regard to this rule

-- that it is unnecessary to require the individual making certifications under this rule to be “independent.” Thus the final rule does not prohibit an employee of the entity needing such certification, from making the certification, provided they are a professional engineer that is licensed by a state licensing

board. The personal liability of t he professional engineer provides strong support for both the

1 While the definition did not require the independent registered professional engineer or hydrologist to be licensed, the preamble did state that EPA expects that professionals in the field will have adequate incentive to provide an honest certificat ion, given that the regulations require that the engineer not be an employee of the owner or operator of the CCR landfill or CCR surface impoundment, and that they operate under penalty of losing their license, implying that the professional was, in fact, licensed.
This narrative and the title of i ndependent registered professional engineer caused many commenters to

assum e that the certifiers indeed had to be a licensed professional engineers. (75 FR at 35194, June 21, 2010).732

requirement that certifications must be performed by licensed professional engineers, and for removing the requirement that the engineer be "independent."

While other commenters argued that t he word “independent” should be retained because an independent review and certification avoids any potential of conflict of interest, the Agency is convinced that an employee of a facility, who is a qualified professional engineer and who has

been license d by a state licensing board would be no more likely to be biased than a qualified professional engineer who is not an employee of the owner or operator. Moreover, it is not

clear that an in

- house engineer faces a greater economic temptation than an indep endent engineer seeking to cultivate an ongoing relationship with a client. EPA has concluded that the programs established by state licensing boards provide sufficient guarantees that a professional engineer, regardless of whether he/she is “independent” of the facility, will give a fair technical

review.

Moreover, and as a n additional protection, the Agency has re

- evaluated the performance standards throughout the final rule to ensure that the requirements are sufficiently objective and technically pre cise that a qualified professional engineer will be able to certify that they

have been met.

The Agency agrees with concerns that a professional engineer may not be qualified to address all the varied aspects of CCR landfill and CCR surface impoundment design, and has amended the definition to clarify and strengthen the qualifications of the individual authorized to certify the technical demonstrations under the rule. In the proposed rule, the Agency did not require an independent registered professiona l engineer to be licensed, only that they be an engineer or hydrologist who had received a baccalaureate or post graduate degree in the natural sciences with training and experience in groundwater hydrology or a related field. While the term “independent registered professional engineer or hydrologist” conveyed to some commenters that the individual was in fact “licensed,” the definition in the proposal did not require it. Moreover, as noted by commenters, the proposed definition focused primarily on hydr ogeology expertise and did not include training and experience qualifications necessary to accurately certify some of the requirements being promulgated in the rule, e.g., landfill and surface impoundment design and construction, structural stability asses sments, analysis of unstable areas. In reviewing this proposed requirement, the Agency has determined that specifying exact qualifications and or experience for the professional engineer is neither necessary nor practical, given the range of technical spe cifications that will require certification. EPA has therefore adopted a more succinct requirement focused on the professional engineer being qualified to perform the task or certification.

In making this change, the Agency was again strongly influenced by the “Resource Conservation and Recovery Act (RCRA) Burden Reduction Initiative” rule. (71 FR 16826, April 4, 2006). In that rule, EPA amended the majority of RCRA provisions requiring the certification of an “independent, qualified, registered, profess ional engineer” to substitute the phrase, a “qualified professional engineer,” reasoning that a requirement for a qualified professional engineer maintains the most important components of any certification requirement: (1) that733

the engineer be qualified t o perform the task based on training and experience; and (2) that she or he be a professional engineer licensed to practice engineering under the title Professional Engineer which requires following a code of ethics with the potential of losing his/her lic ense for negligence (See 71 FR at 16868.)

In the “ Burden Reduction Rule ”the Agency concluded that a professional engineer is able to give fair and technical review because of the oversight programs established by the state licensing boards that will subje ct the professional engineer to penalties, including the loss of license and potential fines if certifications are provided when the facts do not warrant it. In fact, this personal liability of the professional engineer is one of the primary reasons that
commenters to the “ Burden Reduction Rule ”supported the idea that RCRA certifications should only be done by licensed professional engineers (See 71 FR at 16868). Upon further analysis and reflection, the Agency sees no reason to deviate from the position EPA held in the “ Burden

Reduction Rule .” Despite some concerns raised by commenters that problems could occur if an owner or operator hires an engine ering firm that is small, inexperienced, or operating outside of their past professional practice, the Agency continues to believe that with the protections afforded by the specific performance standards in this rule and the standards and ethics by

which a qualified professional engineer will certify technical demonstrations, situations where an unqualified or un

- licensed engineer certifies a technical demonstration will be avoided. Furthermore, it is important to reiterate that state licensing boards can investigate complaints of negligence or incompetence on the part of professional engineers, and may impose fines and other disciplinary actions, such as cease

- and

- desist orders or license revocation. (See 71 FR at 16868). In light of the third party overs ight provided by the state licensing boards in combination with the numerous recordkeeping and recording requirements established in this rule, the Agency is confident that abuses of the certification requirements will be minimized

and that human health an d the environment will be protected.

The Agency wants to make it clear that qualified professional engineers can utilize a team of professionals in performing the analyses that underlie these certifications. The Agency is confident that
in most instances, the basis for certification by a qualified professional engineer will be the result of a team of professionals (e.g., geologists, hydrologists, scientists and engineers) who have collectively worked together in order to provide the data and analyses necess ary for the professional engineer to certify the specific demonstration.

The Agency is convinced that the change to the certification requirements to allow the use of in

- house expertise will not compromise environmental safety. Professional engineers em ployed by a facility are more familiar with the facility’s particular situation and are in a position to provide more on

- site review and oversight of the activity being certified. To this end, the Agency is also requiring that the qualified professional e ngineer be licensed in the state in which the CCR unit is located. The Agency has made this decision for a number of reasons, but primarily because state licensing boards can provide the necessary oversight on the actions of the professional engineer and investigate complaints of negligence or incompetence as well as impose fines and other disciplinary actions such as cease

- and

- desist orders or license revocation. Oversight may not be as rigorous if the professional engineer is operating under a
license i ssued from another state.

Finally, the Agency disagrees with comments that professional geologists or geoscientists should be added to the list of those professionals that have expertise and authority to certify compliance with734

certain RCRA subtitle D re gulatory requirements. In developing this final rule, the Agency has re

considered the qualifications necessary to certify compliance with the technical requirements of the rule and is limiting compliance certifications to qualified professional engineers only. While some environmental professionals, e.g., hydrologists, geologists may be qualified to make certain certifications, we are not convinced that hydrologists or geologists licensed by a state are held to the same standards as a professional engine er licensed by a state licensing board. For example, it is unclear that hydrologists or geologists are subject to the rigorous testing required by professional engineers or that state licensing boards can investigate complaints of negligence or incompeten ce. Further, professional engineers have licensing boards in all 50 states, a standard not achieved by other professional disciplines. Consequently, hydrologists, geologists, or other professionals may only perform analyses that underlie the certificat ion, but it is the responsibility of a qualified professional engineer to
make the actual certification.

Include Professional Geologists to the List of Registered Professionals Who Can Certify

Comment : EPA should include professional geologists/geoscientists (i.e., in addition to professional engineers and hydrologists) to the list of registered professionals that have the expertise and authority to certify compliance with certain of the RCRA subtitle D operating standards. In particular, it is appropriate to have professional geologists certify compliance with groundwater monitoring standards, just as it is appropriate for professional engineers to certify compliance with the design of such units.

EP A Response: The Agency disagrees with the commenter that professional geologists or geoscientists should be added to the list of those professionals that have expertise and authority to certify compliance with certain RCRA subtitle D regulatory requirement s. In developing this final rule, the Agency has re

- considered the qualifications necessary to certify compliance with the technical requirements of the rule and is limiting compliance certifications to qualified professional engineers only. As previousl y discussed in this section, the Agency is allowing only professional engineers licensed in the state in which the CCR disposal unit is located to make technical certifications. While we agree that some environmental professionals, e.g., hydrologists, geol ogists may be qualified to make certain certifications, it is imperative that the goals of human health and the environment are maintained. As such, we are not convinced that hydrologists or geologists licensed by a state are held to the same
standards th at a professional engineer licensed by a state licensing board would be. For example, it is unclear to us that hydrologists or geologists are subject to the rigorous testing required by professional engineers or that state licensing boards can investigate complaints of negligence or incompetence. State licensing boards for professional engineers, on the other hand, may impose fines and other disciplinary actions such as cease and desist orders or license revocation. Furthermore, professional engineers ha ve licensing boards in all 50 states, a standard not achieved by other professional disciplines. While the Agency agrees with the commenter that in many instances hydrologists, geologists, or other professionals may possess the necessary qualifications, k nowledge, and experience to certify certain technical requirements of the rule, their role is limited to performing the analyses that underlies the certification. It is the responsibility of a qualified professional engineer to make the actual735

certificati on. As a final matter, a s previously explained, the existence of these state licensing boards was critical in EPA's decision to allow otherwise qualified facility employees to provide the certifications, i.e., remove the qualification that the professiona l engineer be independent.

Definition is Lacking Requirement for Expertise in Other Aspects of CCR Disposal

Comment: The proposed definition of independent registered professional engineer or hydrologist calls for expertise in groundwater investigation, which is suitable for a hydrologist or hydrogeologist, but not enough on issues concerning an engineer, including competence in and knowledge of solid waste landfill design, operation and closure, soil and geosynthetic
materials used in landfill construct ion, and geotechnical aspects of soils, geosynthetics, solid waste, and landfill operations.

EPA Response : In the proposed rule, the Agency put forth the term, “ independent registered professional engineer or hydrologist ” as one who would be qualified to certify that certain technical requirements of the rule would be met. The Agency agrees that the definition in the proposal focused primarily on an engineer or scientist with sufficient training and experience in groundwater hydrology and did not focus

o n training or experience in other fields that would have more relevance in certifying other technical requirements of the rule besides groundwater monitoring (e.g., fugitive dust control, closure, liner design, structural stability). This disconnect betwe en the technical requirements of the rule and the definition of who is qualified to certify has caused the Agency to re

- evaluate both the use of the term

“ independent registered professional engineer or hydrologist ” and the requirements necessary in order to certify compliance with the technical requirements of the rule. As previously discussed, this re

evaluation has lead EPA to the conclusion that there are essentially two criteria necessary to make certifications; (1) that the professional is qualified t o perform the task; and (2) that she/he is a licensed professional engineer (following a code of ethics and the potential of losing his/her license for negligence.) T herefore, to remedy this oversight, the Agency is adding the word “qualified” before the

t erm professional engineer in identifying those professionals who can certify demonstrations showing compliance with the technical requirements of the rule and removing any reference to particular areas of expertise. In the final rule, certifications will be made by professional engineers that are qualified to perform the task. This means that a professional engineer must be proficient in the area that he/she is certifying. This also means that the professional engineer can rely on other professionals, e. g., groundwater scientists, hydrologists, structural engineers to provide the underlying technical analysis for the specific certification.

Self

- Implementing Framework Puts Certifying Professionals at Risk for Lawsuits

.

Comment : What EPA is proposing r equires the certifying professional to inappropriately take on a quasi

- regulatory and enforcement role which would be better and more appropriately performed by the states, placing the certifying professional at great risk of being subject to

nuisance laws uits from project opponents, creating a scenario where some professionals may

decline to be involved in such reviews.736

E PA Response: The commenter has raised a valid concern; several of the performance standards in the proposed rule were adapted from part 258, which were designed to operate in the context of an approved state program, by a state regulatory authority, rather than a purely private entity. In part due to this concern, the Agency has reevaluated the performance standards throughout the final r ule, and has revised them to ensure that the requirements are sufficiently objective and technically precise that a qualified professional engineer will be able to certify that they have been met. Finally, the Agency wants to make it clear that qualified professional engineers can utilize a qualified team of professionals in performing the analyses
that underlie these certifications.

Section 4.2.4

- Federal enforcement provisions are needed, including concerns that EPA has no authority to implement/enfo rce proposed Subtitle D Total Number of Submissions: 88 Total Number of Comments: 100



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 00465

- 5 

### Organization 1 

### : Watauga Watershed Alliance 

### Commenter 1 : Gloria Griffith Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.2.3 

### Comment Excerpt Text: We Need Mandatory State Regulations and Federal Enforcement Authority: Most importantly, the Subtitle C proposal establishes requireme nts that must be met. In contrast, despite the Subtitle D proposals inclusion of many of the same standards, these standards are legally nothing more than suggested guidelines that states may, or may not, choose to follow.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical

demonstration. Under t his rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- H Q

- RCRA

- 2009

- 0640

- 00465

- 6 

### Organization 1 

### : Watauga Watershed Alliance 

### Commenter 1 : Gloria Griffith Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:737



### Comment Excerpt Text:

Absence of Mandatory Permits: EPA cannot require that states issue solid waste permits under the Subtitle D Option. Permits are the prime enforcement tool of state and federal regulatory agencies and are the only mechanism for meaningful public involvement in the sit ing and operation of disposal facilities. Furthermore, requiring facilities to comply with standard permit requirements would allow agencies, with citizen involvement, to prevent pollution before it occurs, rather than undertaking expensive clean

- ups after major damage has occurred.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an o wner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 01088

- 2 

### Organization 1 

### : PMI Ash Technologies, LLC (PMI) 

### Commenter 1 : Tabitha Monds on behalf of Kyle Crake Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.2 

### Comment Excerpt Text: PMI strongly supports providing EPA with additional enforcement authority under Sub

- title D similar to the authority EPA has for municipal solid waste but PMI does no t favor proceeding
under Sub

- title C in any manner even as either a special waste. Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the

q ualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.
The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03934

- 6 

### 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:738



### Comment Excerpt Text: It would be outrageous to leave CCR regulation up to the industry and states, which have done a poor job thus far, to decide the extent and implementation method for new regulations. Response: The Agency acknowledges and appreciates the comment, the comm enter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professiona l engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 05774

- 1 

### Organization 1 

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

### Comment Excerpt Text: I am not qualified to judge on the basis of results of risk assessments an d operating experiences at waste disposal sites whether the option of regulating disposal of CCRs as solid waste under RCRA Subtitle D would provide adequate protection of human health and the environment, or whether adequate protection would be provided o nly if regulation of CCRs as a special class of hazardous waste under RCRA Subtitle C were required. However, I believe that a number of factors may indicate that regulation of disposal of CCRs as hazardous waste under RCRA Subtitle C is the preferred opti on.

First, I believe it is reasonable to question whether states are capable of providing adequate regulatory oversight of disposal of CCRs in landfills or surface impoundments as would be prescribed under RCRA Subtitle D. The disaster at the Tennessee Va lley Authority's Kingston steam plant in Harriman, Tennessee, on December 22, 2008, is a case in point. It appears that the State of Tennessee did not have adequate regulatory oversight of surface impoundments at that site, in spite of the existence of a N ational Pollutant Discharge Elimination System (NPDES) permit issued under the Clean Water Act.

Second, I believe it is important to consider the levels (concentrations) of hazardous substances, primarily metals, in CCRs. If concentrations of hazardous su bstances are similar to
concentrations of those substances in other wastes that have been classified as hazardous waste under RCRA Subtitle C, it stands to reason that CCRs should be managed as hazardous waste when they are not designated for beneficial us e.

Third, if EPA has no authority to enforce regulations it establishes under RCRA Subtitle D, what is to prevent states from simply ignoring them? As noted by EPA, citizens can file lawsuits to compel compliance, but this seems like a terrible way to enf orce regulations. As the experience739

with Massey Energy Co. and its coal mines in West Virginia clearly demonstrates, companies can fend off responses to legal action for a very long time if they are inclined to do so. Regulation of disposal of CCRs should be proactive based on the hazards posed by those materials, not reactive.

Finally, I believe that perpetual care over disposal facilities is an important issue for CCRs, due to their large volumes and persistence of the hazards essentially forever. Althou gh assessments of risks to future inadvertent intruders at disposal sites following an assumed loss of institutional control have not been performed under RCRA, it is reasonable to presume on the basis of known
concentrations of hazardous constituents of C CRs that risks to future inadvertent intruders could be unacceptable if institutional control and societal memory of past disposals at a site were lost. The probability that institutional control and societal memory would be lost and future
inadvertent int ruders put at risk should be substantially less at a RCRA Subtitle C disposal facility, which are relatively few in number, than at a more common RCRA Subtitle D facility. If so, this is an argument in favor of regulating disposal occurs under RCRA Subtitl e C. Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators techni cal demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06196

- 23 

### Organization 1 

### : Comite Dialogo Ambiental 

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



### Comment Excerpt Text: Furthermore, various factors indicate that regulation of CCRs under RCRA subtitle D would not be sufficiently protective in Puerto Rico and other jurisdictions similarly situated. Enforcement of subtitle D regulations has been very la x in Puerto Rico. Most landfills have a history of noncompliance including lack of liners or groundwater monitoring, piggy backing wastes and many other regulatory violations. In one case, when selenium and other constituents of concern were detected in gr oundwater monitoring wells, the Puerto Rico government authorized relocation of the wells rather than require any type of remediation [Footnote 7: See EPA, Region II file on Salinas Municipal Landfill, operated by Browning Ferris Industries and Allied Wast e Corp.] New Puerto Rico permitting regulations curtail public participation in siting processes and other activities requiring permits [Footnote 8: See Puerto Rico Law 161 of December 1, 2009.]. At least one study has shown that the percentage of environm ental impact statements required by the Commonwealth government for new projects has steadily declined over the years [Footnote 9: See C. M. Concepcion, Justicia Ambiental en Puerto Rico, 35 REV. J. UNIV. INTER. P.R. 75 (2000).].740

Jurisdictions with weak r egulatory frameworks and/or a history of lax environmental or subtitle D enforcement, such as Puerto Rico, Alabama and others, will not achieve safe handling of CCRs under subtitle D regulation. The race to the bottom phenomenon posits that jurisdictions

t hat seek to attract “low cost” energy generators or industries will forego environmental protection and regulation [Footnote 10: PLATER, ET ALS, ENVIRONMENTAL LAW AND POLICY, 283,296

- 298,460

- 461 (3RD ED, 2004),ASPEN PUBLISHERS]. Often, these jurisdictions lack the resources needed to monitor operations that entail potentially significant environmental impacts. This happens both in the United States and abroad. A case in point is the Dominican Republic, where CCRs generated at the AES plant in Guayama, Puert o Rico, were disposed of with no protective measures [Footnote 11: Settlement Agreement. Appendix C.] The level of state oversight seems to be related to economic development.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engine er to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06223

- 5 

### 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: The purpose of Subtitle D is to provide a cooperative inter

- governmental framework through which U.S. EPA’s role “is to establish the overall regulatory direction, by providing minimum nationwide standards.”[Footnote 8: 75 Fed. Reg. 35136.] The only way EPA can fulfill its role and carry out the purpose of Subtitle D is through consistency. The “threats” posed by CCRs are no more or less widespread or environmentally dangerous than dozens of other low toxicity and high volume industrial waste streams currently regulated by states without federal oversight. Ohio has five separate regulatory schemes for large volume, low toxicity industrial waste streams (lime processing, steel making, paper making, gypsum manufacture, and foundry processes). None of these materials are subject to a sweeping program such as that proposed by U.S. EP A. Yet, they have many of the same constituents and properties as CCRs. Does U.S. EPA intend to propose hazardous waste listing for all large volume industrial wastes under the same theory?

Much of U.S. EPA’s preamble is dedicated to explaining how, witho ut listing CCRs as a hazardous waste, U.S. EPA will have no direct oversight or control of state programs. However, listing CCRs as a hazardous waste would still leave dozens of other large volume industrial
wastes in that same circumstance. The RCRA stand ards for classifying a waste do not support a listing simply because U.S. EPA does not consider its enforcement authority sufficient. Congress741

prescribed the extent of U.S. EPA’s authority and the criteria for listing hazardous wastes. To list
a waste as h azardous, U.S. EPA must show that the material will create a significant threat to human health and the environment, consistent with its historical and lawful application of the standards. CCRs do not meet those standards, and are safe when regulated as a solid waste. U.S. EPA must respect the policy determinations Congress has made and abide within the enacted legislative framework

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a disc ussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’ s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06275

- 25 

### 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: Examine Context Assigned/Due:
Other Sections: 4.2.1 

### Comment Excerpt Text: As EPA points out in the preamble to the Proposed CCR Rule, EPA lacks direct enforcement authority under the Subtitle D option. Accordingly, EPA’s Subtitle D option proposes an awkward system of CCR landfill location, design and operating requirements that would be enforced through citizen suits based on information posted to internet web pages. The cost of developing and maintaining this web

- based information tracking system will be significant and will almost certainly be passed on to CCR generators.

Re sponse: The Agency acknowledges and appreciates the comment, the commenter is referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications of the individual that must certify an owner or operators technical

dem onstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble. EPA ’s assessment as to the cost of development of a publicly assessable internet site is addressed in the cost benefit analysis (see Unit XII of the preamble discussion as well as the cost benefit document supporting this rule.)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 4 

### Organization 1 

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

### Commenter 1 : Paul L. Sloan742

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



### Comment Excerpt Text: Should EPA believe it does not have sufficient statutory authority to fully implement regulation of CCR via RCRA Subtitle D, we believe EPA should work with Congress to obtain necessary authority. This is preferable to attempting to r egulate as a hazardous waste a material whose metals concentrations do not meet the toxicity characteristics of a hazardous waste under RCRA
Subtitle C.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 44 

### 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: If it is determined a more active federal role is required, we strongly recommend that Congress amend RCRA Subtitle D to allow federal oversight of the management of CCR as a solid waste.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 87 

### Organization 1 

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

### Commenter 1 : Paul L. Sloan Commenter Type: State Government
Classification: Sub stantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.2.3 

### Comment Excerpt Text: Federal oversight appears to be the driving force behind EPA's wish to select the Subtitle C option. Rather than imposing trillions of dol lars of cost to achieve that, it would be much simpler
and cost effective to amend the statute if that is EPA's desired result. The states and EPA have worked very well together in the Subtitle C program over the last three decades. There is a

proven recor d to teamwork in many environmental programs, such as in the air and water programs. Opposition to amending the statute to allow EPA oversight authority for Subtitle D743

would be miniscule, or non

- existent, compared to the opposition to the current Subtitle C option.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 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 7.1.1.3 7.1.2.5 

### 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 criteria. It is important to remember that groundwater monitoring requirements are often absent or inadequate. This list is limited to those s ites 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 regulati ons is misplaced. The current criteria, contrary to their statutory purpose, have failed to ensure that there is “no reasonable probability of adverse effects on health or the environment.” [Footnote 169: 42 U.S.C. § 6944(a).] The proposed changes to the s ubtitle 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 Control” damage reports. [Footnote 171. In Harm's Way , at 124

- 31; Out of Control , at 19.])

Response: The Agency acknowledges and appr eciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 40 

### Organization 1 

### : Earthjustice et. al. 

### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:744

Other Sections: 4.4.2.2 7.1.2.5 7.1.1.3 

### 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

sta te

- enforced prohibitions of unpermitted surface water discharges and groundwater contamination. Yet the risk is not diminished if states consistently fail to enforce the basic requirements of Subtitle D. The lists above show that many landfills and surface impoundments are discharging selenium and other pollutants in violation of NPDES permits and that seeps from surface impoundments and landfills discharge without abatement. Many more sites are leaching arsenic, fluoride, lead, and other contaminants into aquifers that are potentially or actively supplying drinking water. These prohibited “open dumps” illustrate that states are not enforcing current federal guidelines. The present guidelines are few and straightforward. It is unreasonable
to believe that st ates will do a much better job with the much more complex guidelines proposed under EPA’s subtitle D option.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 20 

### 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: 2.1.2 

### Comment Excerpt Text: As indicated by the written comments on the Proposed Rule submitted to EPA by states such as Indiana and Kentucky, EPA is encouraged, to the extent it deems necessary, to request from Congress the statutory authority necessary to propose non

- hazardous regulations under Subtitle D that are implemented by the states and provide federal enforceability. If such a mechanism is not utilized by EPA for states to be able to implement these rules, the electric utility industry and CCR beneficial users will be faced with having to comply with duplicative and potentiall y inconsistent state and federal regulations, an undue regulatory burden with no corresponding
environmental benefit.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 22 

### Organization 1 

### : Duke Energy 

### Commenter 1 : Mike Stroben Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:745

Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.2 

### Comment Excerpt Text: Duke Energy concurs with USWAG’s legal analysis that EPA already has the authority to promulgate rules under RCRA §§ 4005(c) and 4010(c) that may be administered through state permitting programs and be subject to direct federal enforcement in states that fail to adopt and adequately administer the federal rules. Specifically, EPA can utilize a combination of the RCRA statutory authorities it employed in promulgating federally enforceable Subtitle D rules for municipal solid waste land disposal facilities (“MSWLFs”) and non

- MSWLFs under 40
C.F.R . §§ 257 and 258 to establish controls for CCR disposal units.

This approach provides EPA with the enforcement authority it desires under a Subtitle D CCR regulatory program, while also giving the states the opportunity to take a prominent role in the
adm inistration of any Subtitle D CCR program. Again, this would prevent the duplication of potentially conflicting federal and state requirements. If, for whatever reason, EPA does not agree that the use of RCRA §§ 4005(c) and 4010(c) are legally defensible, it can and should seek congressional authorization to develop such a rule for managing CCR under a state authorized program similar to that developed for MSWLFs under 40 C.F.R. § 258, rather than promulgate a CCR rule that does not provide for state implem entation.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 34 

### 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: 4.5 

### Comment Excerpt Text: The preamble states on p. 35160 that “EPA also does not have the authority to determine whether any state permitting program for CCR facility is adequate”. EPA Regional staff did not seem to have undue difficulty with becoming familiar with State rules whe n reviewing State MSW landfill regulations as part of seeking authorization under part 258 MSW landfill rules, nor in making decisions about their adequacy. EPA Regional staff, in our experience, are reasonably familiar with State rules, including many or all requirements for non

- MSW waste disposal sites. It should also be pointed out that State agency plan review staff are already in a position to achieve the goal repeated often in the preamble, of effectively implementing regulations and tailoring them to individual site conditions.746

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced

. The reader is also r eferred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06424

- 3 

### 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: 1.5 4.2.2 7.4.2 

### Comment Excerpt Text: State Adoption of EPA Rules

EPA should use the same methodology for regulating CCRs as was us ed 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 rules in states that EPA dete rmines 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 rules, we request
an additio nal public comment period to adequately address the proposed rules.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemen ted and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### 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: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.1 7. 1 

### 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 wou ld allow EPA only to develop suggested guidelines for coal ash disposal, leaving citizens without federally enforceable rules and permitting our state747

to opt out of the guidelines. As your analysis has already indicated, the majority of states are likely t o ignore any EPA

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

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

- regul ation 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 concern 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 sh elved the proposed reforms, with the justification that EPA would soon put stronger regulation in place that would supersede any effort by DNR.

Response: The Agency acknowledges and appreciates the comment, the commenter is
referred to Units V and IX of t he preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06533

- 14 

### Organization 1 

### : Empire District Electric Company 

### Commenter 1 : George G. Thullesen Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Exce rpt Text: Empire District urges EPA to take a ‘States First’ approach for primacy in regulating CCR with EPA providing oversight of state plans. EPA should provide for the evaluation of state programs. The proposed rule and alternatives do not provide for any interplay between the states and EPA; rather, merely the acceptance of data. Empire District recommends that EPA establish guidance for the state RCRA subtitle D or D prime programs and evaluate state programs for compliance based on that guidance. We are not against EPA being granted oversight authority to regulate under subtitle D or D prime if EPA provides the states with the appropriate methodology to maintain primacy. EPA should recognize and utilize the competent existing staff of the MDNR
and Kan sas Department of Health and Environment (KDHE). The MDNR and KDHE are best situated to make key environmental decisions for their states.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.748



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06723

- 8 

### Organization 1 

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

### Commenter 1 : Gary Casto on behalf of Randy C. Huffman
C ommenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.2.3 

### Comment Excerpt Text: Because the EPA recognizes that CCRs do not display the characteristics referenced in their own hazardous waste definition, CCRs are being designated as special wastes so that EPA can regulate them under Subtitle C. This position contradicts EPA's regulato ry findings published in 1993 and 2000 that stated CCRs "do not warrant regulation under Subtitle C." By designating CCRs as special wastes, EPA is expanding its authority to designate any wastes as hazardous whenever it desires without regard for the appr opriate characterization of the waste or for the ability of the states to effectively deal with waste issues within state borders. Although EPA has repeatedly indicated that sound science will drive their decision

- making, there is no technical
basis for EP A's change in position to regulate CCRs under Subtitle C. Although Section III.B of the proposed regulations references that under Subtitle D EPA does not have the authority to establish requirements governing the transportation, storage, and treatment of CCRs prior to disposal, EPA does not need this authority because CCRs are not hazardous.

EPA asserts that a Subtitle C classification is necessary for it to retain and exercise appropriate enforcement authority and that it cannot require states to permit CCR disposal facilities under Subtitle D. If it would choose to do so, the EPA can regulate CCR disposal facilities under the same RCRA Sections (4010 and 4005) that it used to develop federally enforceable Subtitle D regulations for municipal landfills. Using this authority, the States can be afforded the opportunity to operate the Subtitle D program either by demonstrating that the state rules already are as stringent as the Federal Subtitle D rules or by adopting additional regulations that include
mini mum Subtitle D standards. If State programs do not adopt the minimum federal standards, the EPA could step in with direct enforcement powers.

Response: The Agency acknowledges and appreciates the comment, the commenter is
referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06723

- 9 

### 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: 4.2.5749



### Comment Excerpt Text: Furthermore, as referenced in Sections X.B and XII of the proposed regulations, the 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 afforded by Subtitle C.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06817

- 45 

### Organization 1 

### : Portland Cement Association 

### Commenter 1 : Robert Hirsch Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Unless EPA can prove irrefutably 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 co uld not, and would 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 V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06826

- 2 

### Organi zation 1 

### : The University of Wisconsin Madison 

### Commenter 1 : Craig H. Benson and Tuncer B. Edil Commenter Type: Academia
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: One argument that has been proffered for choosing a Subtitle C approach relative to a Subtitle D approach is that Subtitle C regulations ensure federal control over CCR management. We can understand the desire for federal control because it can ensure a minimum standard is empl oyed throughout the US. However, we cannot understand why that motivation is tied to a Subtitle C750

designation. Authorized states are already required to meet minimum technology requirements for Subtitle D landfills. These same minimum technology requiremen ts can be applied to disposal of CCRs in Subtitle D type landfills. Moreover, if US EPA is convinced that federal control is necessary, US EPA should request Congress to promulgate a new section of RCRA that provides federal control and requires technology consistent with the risk imposed by CCRs. Requiring a Subtitle C designation for the primary purpose of maintaining federal control is not logical scientifically and would set poor precedent

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR u nder subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06852

- 11 

### Organization 1 

### : Green Delaware 

### Commenter 1 : Alan Muller Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.6 

### Comment Excerpt Text:

Permit Issuance

Federal required and enforceable permits exist under Subtitle C but not D.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06853

- 2 

### Organization 1 

### : Environmental Defense Fund (EDF) 

### Commenter 1 : Elizabeth B. Stein Commenter Type: Advocacy Group
Classification: Subs tantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The available information regarding inadequate management of coal ash at the state level underscores the importance of more rigorous protections. The EPA’s recen t risk assessment points to the inadequacy of some types of active management systems for coal ash that have been put in place, such as clay liners, and we know that many disposal sites under state regulation fail to manage the contaminants from coal ash a t all. 75% of surface impoundments are greater than751

25 years old, and 10% greater than 50 years old, and many completely lack liners and ground water monitoring systems. [Footnote 6: Id. at 35,151] Though recent data have shown improvement in the managemen t of coal ash by some states at new disposal facilities, the most recent (2009) data from the Association of State and Territorial Solid Waste Management Officials (ASTSWMO) reveals persistent gaps in the regulation of coal ash at the state level. As
the E PA’s proposed rule notes, the ASTSWMO study reported that 36% of states that responded to a survey reported no liner requirements for new or existing CCR landfills, and 67% of responding states reported no liner requirements for CCR surface impoundments. [ Footnote 7: Id. at 35,152.] Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06853

- 4 

### Organization 1 

### : Environmental Defense Fund (EDF) 

### Commenter 1 : Elizabeth B. Stein Commenter Type: Advocacy Group
Classification: Sub stantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.2 

### Comment Excerpt Text: C. Regulations Under Subtitle D Would Pose Unacceptable Risk to Human Health and the
Environment

Because the best available data show that specific steps must be taken to properly treat, store, transport and dispose of coal ash in order to avoid a substantial hazard to human health and the environment, we oppose the Subtitle D option. The weak federal oversight and enforcement capability under Subtitle D does not suit the national scope of the coal ash problem, especially in light of the inadequacy with which disposal is currently being managed in many jurisdictions. Furthermore, EPA predicts a 100% compliance rate under the Subtitle C ap proach, but only a 48% compliance rate under Subtitle D.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enfo rced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. As a final matter , the commenter is referred to the revised cost benefit analysis for a revised analysis of co sts and
benefits.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06860

- 18 

### Organization 1 

### : South Carolina Chamber of Commerce, Environmental Technical Committee 

### Commenter 1 : David M. Comen752

Commenter Type: Trade Association
Classification: Substantive
Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The ETC supports a legislative change to allow EPA to step in where states do not have a solid waste program, or have an insufficient program, similar to the authority already e xercised by EPA with the hazardous waste (RCRA), air emissions (CWA), and discharges to water (CWA)

programs.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06956

- 5 

### Organization 1 

### : Tri

- State Generation & Transmission 

### Commenter 1 : Barbara A. Walz Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: D. EPA Has The Authority To Develop Subtitle D Rules Administered By The States With Direct EPA Enforcement Authority One of EPA’s stated concerns with the Subtitle D option is that it would not allow EPA to require the states to implement the Subtitle D CCR controls through state permits, approve the adequacy of the state programs, or enforce the regulations against non

- compliant facilities. This concern is misplaced. EPA is under

- utilizing the full scope of its authority under Subtitle D by looking solely to RCRA section 4004 for purposes of developi ng Subtitle D controls for CCRs. EPA can utilize the same combination of RCRA statutory authorities

– i.e. , RCRA sections 4010(c) and 4005(c)

– for establishing controls for CCR disposal units that it employed in promulgating federally enforceable Subtitle D rules for municipal solid waste landfills (“MSWLFs”) and for non

- MSWLFs that receive household hazardous waste and small quantity generator waste under 40 C.F.R. Parts 257 and 258. The combination of these two Subtitle D provisions enables EPA to promul gate non

- hazardous waste rules for CCRs that can be directly administered through state permitting programs and
backed

- up by direct EPA enforcement powers in those states that fail to adequately implement the federal rules. Such an approach offers a win

- wi n option for EPA

– it provides the Agency with the enforcement authority it desires under a Subtitle D CCR regulatory program, while also enabling the states to have a prominent role in the administration of any Subtitle D CCR rules, thereby preventing the duplication of federal and state controls that the Bevill Amendment
directs EPA to avoid. The plain language of section 4010(c) directs EPA to promulgate upgraded Subtitle D standards
for facilities that may receive CESQG hazardous wastes and for facilit ies potentially receiving such wastes. This language applies on its face to CCR disposal units, as they are Subtitle D solid waste management units that, under RCRA's statutory scheme, may receive CESQG hazardous753

waste and clearly have the potential to rec eive such wastes. Nothing in the plain language of the statute limits these provisions to only those facilities that "actually receive" household hazardous wastes or CESQG wastes. If Congress had intended to limit the statute in this manner, it would
have written the law saying just that; it did not. Section 4005(c), which was enacted as a companion provision to section 4010(c), directs the states to adopt the new regulations for Subtitle D facilities that may receive household or CESQG wastes and, of criti cal importance here, specifically authorizes EPA to enforce such regulations in those states that fail to adopt the federal rules. Specifically, that section provides, in pertinent part, that, after EPA has promulgated the revised criteria under section 40 10(c) for the specified Subtitle D facilities, “each State shall adopt and implement a permit program or other system o[f] prior approval and conditions to assure that each solid waste management facility within such State which may receive” household or C ESQG hazardous waste “will comply with” the revised criteria promulgated by EPA under RCRA § 4010(c) for such facilities.
Tri

- State G&T appreciates that the development of a proposed Subtitle D regime allowing for administration of the regulations by quali fied state programs, whether under RCRA section 4010(c) or through some other mechanism, will necessitate issuance of a supplemental proposal. Nonetheless, this additional procedural step is necessary to ensure promulgation of an environmentally sound regu latory program for CCRs that allows for appropriate state involvement. Such an approach is consistent with the rulemaking record and the dictates of the
Bevill Amendment

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07395

- 16 

### Organization 1 

### : Texas Coal Combustion Products Coalition (TCCPC) 

### Commenter 1 : Michael J. Nasi Commenter Type: Trade Association
Cla ssification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: B. EPA Has the Authority Under RCRA 4010(c) to Require State Oversight Under RCRA
Subtitle D

The TCCPC does not believe that federal involvement is necessary given the comprehensive nature of the Texas program. Nevertheless, given EPA's continued desire to propose national regulations, it disagrees with EPA's assessment of its authority under RCRA Subtitle D.

EPA has stated that it:

[does] not have administrative enforcement authority to enforce any RCRA subtitle D criteria for CCR facilities, authority to require states to issue permits for them or oversee those permits, nor754

authority for EPA t o determine whether any state sprogram for CCR facilities is adequate [Footnote 42: Coal Ash Rule Proposal, 75 Fed. Reg. at 35,136.].

The TCCPC respectfully submit that this overly narrow view of the law by EPA is unwarranted and the consequences are sign ificant. EPA has the authority under RCRA to develop a process to evaluate state CCR programs to ensure compliance and require a prior approval mechanism enforced by the states.

EPA's authority to rely upon either a state

- led permitting progranl or other system of prior approval comes from the same provisions under which EPA has already developed federally enforceable criteria for Municipal Solid Waste Landfills (MSWLFs) and non

- municipal solid waste landfills that may receive conditionally exempt small qu antity generator (CESQG) hazardous waste. RCRA Section 4010(c) requires only that a facility "may" receive such waste, not that such waste is, in fact, received.

Section 4010(c) of RCRA provides:

Not later than March 31, 1988, the Administrator shall pro mulgate revisions of the criteria promulgated under paragraph (1) of section [4004] of this title and under section [1008] of this title for facilities that may receive hazardous household wastes or hazardous wastes from small quantity generators under sec tion [3001] of this title. The criteria shall be those necessary to protect human health and the environment and may take into accolmt the practicable capability of such facilities. At a minimum such revisions for facilities potentiallv receiving such wast es should require ground water monitoring as necessary to detect contamination, establish criteria for the acceptable location of new or existing facilities, and provide for corrective action as appropriate. (emphasis added).

Once Section 4010(c) criteria are promulgated, states would be required to adopt a pellTIit program or other method of prior approvaL As stated in RCRA Section 4005(c)(1)(B):

[n]ot later than eighteen months after the promulgation of revised criteria under subsection [4004(a)] of thi s title (as required by section [4010(c)] of this title), each State shall adopt and implement a permit program or other system [of] prior approval and conditions, to assure that each solid waste management facility within such State which may receive haza rdous household waste or hazardous waste due to the provision of section [3001(d)] of this title for small quantity generators (otherwise not subject to the requirement for a pemlit under section [3005] of this title) will comply with the criteria revised under section [4004(a)] of this title.

The combination of RCRA Section 4005(c) and 4010(c) enables 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. The result allows EPA to retain direct enforcement authority, while allowing states to implement state specific programs that make sense. This prevents duplication of federal and state rules, but more importantly and as
EPA has lo ng recognized, allows for states to address the individuality of state environmental conditions and requirements. In the end, this approach leads to more effective efficient environmental and human health protection755

Response: The Agency acknowledges and a ppreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the dec ision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07489

- 5 

### Organization 1 

### : Council of Industrial Boiler Owners (CIBO) 

### Commenter 1 : Robert D. Bessette Commenter Type: Trade Association
Classification: Substantive
Comment Ca tegory: Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.5 

### Comment Excerpt Text: EPA mischaracterizes the differences between the Subtitle C and D programs, contending without support that the Subtitle D program lacks enforceability.
EPA is pursuing a Subtitle C regulation based on a misperception that EPA needs enhanced enforcement options because the states lack such authority. At the same time, EPA and other federal agencies, continue to delegate programs and enforcement to the states; and as discussed previously, with some additional support from EPA, states can develop and implement well

functioning enforcement programs. Even under a state run Subtitle D program, EPA has enforcement authorities that allow it to enforce Subtitle D requ irements. If a site does not comply with Subtitle D Standards, the site could be classified as an “open dump” and subject to enforcement action, even by EPA. Even for authorized state programs, EPA always retains the ability to enforce to prevent an “immin ent and substantial endangerment” of public health or the environment. [Footnote 6: 75 FR 35211]

States can perform effectively; the present state of CCB regulation is not an example of a failed Subtitle D program, rather it is a Subtitle D program never launched. Subtitle D is a highly effective regulatory mechanism, as evidenced by states' implementation of the Subtitle D program for managing solid waste. In the case of CCBs, states have been required to develop their own programs for managing CCBs. In some states, these programs are limited by state laws that limit the state’s development and implementation of a program where EPA has not developed a regulatory approach. The real failure for enforcement lies with EPA. Had EPA promulgated regulations unde r Subtitle D and had the states not implemented the regulations, then perhaps a case of state regulatory failure could be made. Here, however, in the absence of EPA involvement, the states have developed regulations for the management of CCBs from all
comb ustion sources

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.756



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07806

- 2 

### Organization 1 

### : Commenter 1 : Mass Comment Campaign sponsoring by Earthjustice (165 signatures) Part 1 of
2 Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.1 4.1.2 9.2.3 

### Comment Excerpt Text: Subtitle C provides the only effective option for protecting human health an d 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 rules and permitting individual states to opt ou t 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, inadequate state programs.

The untenable r esult under Subtitle D would be unequal and inadequate protection from a pervasive threat that plagues almost every state in this nation. The perilous reality, according to your agency's own calculations, is that those states that currently fail to protect their citizens from the dangers of coal ash are the same states that, given the choice granted by Subtitle D, would ignore newly promulgated EPA guidelines. These are the exact same states that generate the overwhelming majority of the coal ash in the U.S . (approximately 80% of annual generation).

Furthermore, a Subtitle D scheme leaves vulnerable populations

- low

- income communities,
communities of color and children

- living near these disposal sites out in the cold. Selection of
Subtitle D would creat e monumental disparity: those states that will not implement Subtitle D are also more likely to have higher percentages of vulnerable populations, putting them at greater risk. In other words, a weak EPA rule would apply new safeguards in states where coal ash presents a relatively small, or even non

- existent, environmental justice problem, while failing to add protections in states where environmental justice communities are heavily impacted by coal ash disposal.

By comparison, Subtitle C offers a compre hensive, equitable and meaningful basis for coal ash regulation. Where Subtitle D proffers only guidelines, Subtitle C establishes federally enforceable safeguards codified in mandatory permits. Where Subtitle D only addresses disposal,
Subtitle C covers t he entire lifecycle of ash, from generation and storage to transportation, treatment and final disposal.

The breadth and federal enforceability of Subtitle C regulations are necessary because coal ash poses a very real danger. The catastrophic collapse o f the dam at the Tennessee Valley Authority's Kingston plant sounded a warning for the grave threats posed by the nation's aging fleet of coal ash impoundments

- a great number of which are over three

- decades old, not designed, built or constructed by prof essional engineers, and located in states where neither inspections nor evacuation plans have ever been required.757

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions a s to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 28 

### 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: With respect to EPA’s argument that “...RCRA subtitle D requirements would regulate only the disposal of solid waste, and EPA does not have the authority to establish requirements governing the transportation, storage, or treatment of such wastes prior to disposal” (Preamble, pa ge 35160 of the Federal Register), the Department notes that the principal problems that EPA has described in the Damage Cases supporting this rule making were principally involved with disposal of CCRs, not transportation, storage, or treatment.

Respons e: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 23 

### Organization 1 

### : Ohio Environmental Protection Agency 

### Commenter 1 : Chris Korleski Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.1 4.2.2 4.5 

### Comment Excerpt Text: Specifically, Ohio EPA urges U.S. EPA to reexamine the legal interpretation on existing authority or seek appropriate author ity to adopt rules for the U.S. EPA approval of state CCR permit programs modeled after the highly successful Title 40 Part 239: Requirements for State Permit Program Determination of Adequacy. The Title 40 Part 239 approach would ensure that
states with U .S. EPA approved permit programs have direct state enforcement authority in addition to the citizen suit enforcement authority. It also clarifies that an owner or operator of a CCR disposal facility is not obligated to follow the RCRA subtitle D federal ru les if that owner or operator has obtained and complies with an approved state issued CCR disposal facility permit. This avoidance of duplicative regulation is a significant “carrot” for both industry and state government to seek U.S. EPA state permit prog ram approval. For over a decade (1999), this758

approach has successfully ensured state permitting of MSW landfills consistent with minimum national standards. This Title 40 Part 239 approach is widely accepted by the states with the vast majority having obta ined U.S. EPA approval of their state permit programs. It should be noted that this has been accomplished by states without the aid of any federal funding.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 5 

### Organization 1 

### : Ohio Environmental Protection Agency 

### Commenter 1 : Chris Korleski Commenter Type: State Government
Classification: Su bstantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.1 4.2.2 4.5 

### Comment Excerpt Text: Ohio EPA acknowledges U.S. EPA and citizens' concerns regarding the reliance of RCRA
subtitle D on citizen suit enforcement authority. Specifically, Ohio EPA urges U.S. EPA to reexamine the legal interpretation on existing enforcement authority to adopt rules for the U.S. EPA approval of state CCR permit programs modeled after the highly successful Title 40 Part 239: Requiremen ts for State Permit Program Determination of Adequacy. The Title 40 Part 239 approach would ensure that states with U.S. EPA approved permit programs have direct state enforcement authority in addition to citizen suit enforcement authority. It also clarifi es that an owner or operator of a CCR disposal facility is not obligated to follow the RCRA subtitle D federal rules if that owner or operator has obtained and complies with an approved state issued CCR disposal facility permit. This avoidance of duplicati ve regulation is a significant "carrot" for both industry and state government to seek U.S. EPA state permit program approval. For over a decade (1999), this approach has successfully ensured state permitting and state enforcement authority for MSW landfil ls consistent with minimum national standards. This Title 40 Part 239 approach is widely accepted by the states with the vast majority having obtained U.S. EPA approval of their state permit programs. I note that this has been accomplished by states withou t the aid of any federal funding.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is al so referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08251

- 11 

### Organization 1 

### : Massachusetts Department of Environmental Protection759



### Commenter 1 : James C. Colman Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.2.2.1 10.2.2.2 4.4.5.1 4.4.7 4.4.8 4.2.2 4.4.9.1 

### Comment Excerpt Text:

MassDEP recommends that the final EPA regulations include the following critical provisions: • National minimum design and performance standards for disposal in landfills that include requirements for a composite liner, leachate collection, groundwater monitoring and final closu re

Response : The commenter is referred to Unit VI of the preamble for a discussion of the technical standards for CCR landfills and surface impoundments.

• Regulation of beneficial uses of CCR, including potential exemption from further regulation for certain encapsulated uses of CCR in cement products or similar encapsulated uses in products • State or federal compliance assurance for beneficial uses to e nsure that such uses will be protective of public health and the environment

Response: The commenter is referred to Unit IV of t he preamble for a discussion o f EPA’s 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.

• Financial assurance for landfill closure and post

- closure monitoring and mainte nance

Response: As discussed in the proposed rule, EPA has no authority to require financial assurance under the Subtitle D approach being promulgated in this rule. The Agency will consider financial assurance for the electric utility industry as part o f its CERLA 108(b) regulatory development process.

• Allowance for states to be more stringent than the final EPA rules

• Clear enforcement authority and permitting authority for states

Response: The Agency acknowledges and appreciates the comment, th e commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR unde r subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08251

- 12 

### Organization 1 

### : Massachusetts Department of Environmental Protection760



### Commenter 1 : James C. Colman Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.4.5.1.1 4.2.2 

### Comment Excerpt Text: EPA has asked whether the final regulations should provide for alternative liner designs. MassDEP recommends that alternative designs be based on performance equiva lent to the specified standard design. The Massachusetts regulations include a provision allowing for review and approval of alternative designs as long as the design will achieve equivalent or superior performance to the standard design for the life of fa cility operations, closure and post

- closure period. The equivalent design must use methodologies, materials and technologies that are clearly demonstrated to have been successful in similar applications and can use acceptable QA/QC methods to monitor cons truction and performance.

MassDEP believes alternative designs make the most sense where there is a regulatory agency reviewing and approving the alternative. In a self

- implementation regulatory scenario, allowing for alternative designs without agency o versight creates potential compliance issues. If alternative designs are allowed, compliance could be certified by the state or federal government or an independent third

- party verifier subject to audit and enforcement.

MassDEP strongly recommends that t here needs to be state or federal oversight of design and operations of facilities that dispose of CCR. While CCR may be less problematic to manage in a landfill environment than MSW and presents fewer management issues, proper design and
construction of l andfills and monitoring systems is critical and should have a federal or state oversight and approval process. However, absent state or federal oversight, reliance on third party review and certification by independent registered professional hydrogeologis ts or engineers, as appropriate, would be beneficial provided the facility design and operation are subject to state or federal audit and enforcement.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. With regard to alternative liner designs, the commenter is referred to the discussion in Unit VI of the preamble which allows an alternative lower liner as part of a composite liner system for new units.



### 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: Sub stantive Comment Category:761

Current Task: Examine Context Assigned/Due:
Other Sections: 7.4.1 

### Comment Excerpt Text: The EPA proposal identifies the adequacy of State programs as a central issue in selection of an option. A common theme throughout the proposal is that the lack of "federal oversight of State programs" is a "disadvantage to any approach under RCRA Subtitle D." The EPA proposal notes that Subtitle D is implemented by the States and "EPA may act only if the handling, storage, treatment, transportation, or disposal of such wastes may present an imminent and substantial endangerment to health or the environment (RCRA 7003)." The implication is that State Subtitle D programs are inadequate, but EPA presents no evidence to support this presumption.

Since enactment of the 1979 federal Subtitle D regulations, 40 CFR part 257 Criteria for
Classification of Solid Wa ste 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 pract ices. 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 f acilities are mostly compatible with or more stringent than the existing Part 257 minimum standards, 47 out of 47 States responded "yes".

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the pr eamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08840

- 12 

### Organization 1 

### : Electric Power Generation Association 

### Commenter 1 : Douglas L. Biden Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

B. EPA's Concerned Lack of Enforcement Authority Under RCRA D

One of the concerns expressed by EPA in this proposed rulemaking is its perceived lack of enforcement authority over non

- hazardous non

- municipal waste disposal. EPA has referenced
the intent to "i ssue regulations governing the disposal of CCRs under sections 1008(a), 2002,4004 and 4005(a) of RCRA (i.e., "subtitle D" of RCRA). Under this approach, the CCR's
would remain classified as a non

- hazardous RCRA solid waste, and EPA would develop national

m inimum criteria governing facilities for their disposal." 75 Fed. Reg. at 35192.

EPGA suggests that EPA can and should also apply the requirements of RCRA 4005(c) and 4010(c) in this rulemaking, which EPA applies to the regulation of municipal solid waste s.762

RCRA section 4010(c) was added to RCRA to provide additional authority over facilities that may accept for disposal household hazardous wastes or hazardous wastes from small quantity generators (i.e., conditionally exempt small quantity generators or CE SQGs). Section 4005(c) was added as a companion provision to section 4010(c), to direct states to adopt the new regulations for Subtitle D facilities covered under 4010(c), and authorizes EPA to enforce these regulations in states that fail to adopt them. The apparent difference in whether these sections should be applied to CCRs, which are non

- municipal solid wastes, is the potential to accept for disposal of household hazardous wastes or hazardous wastes due to provisions of section 3001(d) for small quan tity generators of hazardous wastes. EPGA believes that the intent for section 4010(c) and 4005(c) to be added to RCRA was so that any facility with the potential of receiving these small quantities of hazardous wastes would be adequately protective of hum an health and the environment. The addition of 4010(c) and 4005(c) was not restricted to only those facilities that actually receive small quantities of hazardous wastes, but was intended to cover those that may. EPGA contends that there is the potential f or CCR disposal facilities to receive small quantities of hazardous wastes, so section 4010(c) and 4005(c) can be applied to CCRs, which, based on the rulemaking record to date, are non

- hazardous solid wastes.

In fact, it appears that EPA supports this co nclusion in the way it has interpreted its authority to develop the proposed requirements for the second option. In developing the proposed RCRA subtitle D option, EPA considered a number of existing requirements, but "The primary source was the existing r equirements under 40 CFR part 258, applicable to municipal solid waste landfills." 75 Fed. Reg. at 35193. Further, "EPA considered that many of the technical requirements that EPA developed to specifically address the risks from the disposal of CCRs as

par t of the Subtitle C alternative, would be equally justified under a RCRA subtitle D regime." [d. EPGA contends that use of this logic suggests that EPA was seeking that additional comfort afforded by the requirements of the municipal waste regulations and certain portions of the hazardous waste regulations to cover the potential for small quantities of hazardous waste being disposed in these CCR disposal facilities.

Application of 4010(c) and 4005(c) allows the program to be directly administered through s tate permitting authority and provides EPA with the enforcement authority that it is seeking in those states that fail to adequately implement the federal rules. In addition, these requirements provide the same level of protection as the first option, but allow CCRs to continue to be classified as
nonhazardous wastes under RCRA Subtitle D

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08852

- 2 

### Organization 1 

### : Western Organization of Resource Councils (WORC) 

### Commenter 1 : Patrick Sweeney Commenter Type: Advocacy Group763

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.2.2 

### Comment Excerpt Text: States where coal produces sign ificant amounts of electricity or economic activity have demonstrated the inability to adequately regulate the coal industry and its toxic byproducts. Your own agency believes if Subtitle D regulation is adopted, states, will likely continue to ignore the dangers of coal combustion waste, resulting in unequal and inadequate enforcement.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule w ill be implemented and enforced and how EPA expects the states to implement the rule. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate
CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08861

- 4 

### Organization 1 

### : Inter

- Tribal Council of Michigan Inc. 

### Commenter 1 : Robin Clark Commenter Type: Tribal Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.2.4 3. 7.6 

### Comment Excerpt Text: Risks associated with CCRs necessitate state and federal permit programs that include monitoring, recordkeeping, enforcement, and financial assurance, as required in Subtitle C. Subtitle C requires facilities to clean up releases of wastes or constituents at the facility and beyond its borders, and demonstrate financial assurance for any obligations or liabilities. Subtitle D's approach of allowing industry to conduct self

- governed monitoring and corrective action, and leaving enf

orcement up to citizens and interest groups, is both inadequate and ill

- advised.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08864

- 1 

### Organization 1 

### : JEA 

### Commenter 1 : Athena Mann Commenter Type: Electric Utility Facility
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.2.3764



### Comment Excerpt Text: In addition to the regulatory options presented in the co

- proposals, JEA urges EPA to more carefully consider a path forward where EPA seeks and obtains the statutory authority needed to approve State programs that meet EPA parameters, allowing States like Florida to manage CCRs in a way that best serves its citizens, while retaining enforcement authority over States that are unable to regulate them in an effe ctive manner.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 49 

### Organization 1 

### : Prairie State Generating Company, LLC (PSGC) 

### Commenter 1 : Keith Bastian Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: PSGC recommends that EPA request specific legislative authorization to develop federally
enfo rceable Subtitle D regulations. If EPA declines this proposal, PSGC supports the development of Subtitle D non

- hazardous waste regulations for CCRs under the proposed Subtitle D Prime option with the modifications discussed below.

Response: The Agency ac knowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion rel ating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09273

- 16 

### Organization 1 

### : Iowa Department of Natural Resources (IDNR) 

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



### Comment Excerpt Text: Legislative Solution Required? If federal enforceability is the primary barrier between scientifically appropriate Subtitle D regulation of CCR versus a RCR A C approach that provides no greater level of environmental protection, the IDNR suggests that the Agency focus its efforts on a legislative solution. Specifically, Congress could direct the Agency to establish waste management criteria under Subtitle D ( or a new subtitle) applicable to solid waste management765

facilities that receive CCR and require that states adopt a compliant permit program. This approach could provide the Agency with the desired enforcement authority to assure states implement those man agement standards. Keeping in mind that any federal regulation should establish minimum requirements to be applied to facilities in states where no approvable state regulatory program exists, and that states should be allowed to demonstrate that their regu latory programs are adequately protective.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The re ader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09274

- 12 

### Organization 1 

### : RRI Energy Inc. 

### Commenter 1 : S. Dixon Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: A. EPA's Concerned Lack of Enforcement Authority Under RCRA Subtitle D

One of the concerns expressed by EPA with t he Subtitle D option is that it would not allow EPA to require the states to implement the Subtitle D CCR controls through state permits, approve the adequacy of the state programs, or enforce the regulations against non

- complaint facilities. EPA
has refer enced the intent to "issue regulations governing the disposal of CCRs under sections 1008(a), 2002, 4004 and 4005(a) of RCRA (i.e., "subtitle D" of RCRA). Under this approach, the
CCRs would remain classified as a non

- hazardous RCRA solid waste, and EPA wo uld develop national minimum criteria governing facilities for their disposal." 75 Fed. Reg. at 35192.

RRI suggests that EPA can and should also apply the requirements of RCRA 4005(c) and 4010(c) in this rulemaking, which EPA applies to the regulation of municipal solid wastes. RRI believes that the intent for section 4010(c) and 4005(c) was so that any facility with the potential of receiving these small quantities of hazardous wastes would be adequately protective of human
health and the environment. The addition of 4010(c) and 4005(c) was not restricted to only those facilities that actually receive small quantities of hazardous wastes, but was intended to cover those that may. RRI contends that there is the potential for CCR disposal facilities to recei ve small quantities of hazardous wastes, so section 4010(c) and 4005(c) can be applied to CCRs, which, based on the rulemaking record to date, are non

- hazardous solid wastes.

Application of 4010(c) and 4005(c) allows the program to be directly administere d through state permitting authority and provides EPA with the enforcement authority that they are seeking in those states that fail to adequately implement the federal rules. In addition, these requirements766

provide the same level of protection as the firs t option, but allow CCRs to continue to be
classified as non

- hazardous wastes under RCRA Subtitle D

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this s ubtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09284

- 18 

### 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: 3.2.3 

### Comment Excerpt Text: Although EP A asserts that the enforcement provisions under the Subtitle C option will provide EPA with more enforcement authority than under the Subtitle D option, Virginia DEQ cautions EPA to examine all options and consider potential changes that may enhance the pr oposal. EPA should consider seeking congressional assistance to provide for greater enforcement authorities under the provisions of the RCRA Subtitle D rather than try to regulate CCRs under the Subtitle C option. Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09284

- 27 

### Organization 1 

### : Virginia Department of Environmental Quality 

### Commenter 1 : Jeffery A. Steers Commenter Type: State Government
Classi fication: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.2.3 

### Comment Excerpt Text: EPA has also stated that the enforcement provisions under the Subtitle C option provide EPA with more enforcement authority t han under the Subtitle D option. Virginia DEQ urges EPA to do their due diligence and examine all options and consider potential changes that may enhance the proposal. EPA should consider seeking from Congress greater enforcement authority under the provis ions of the Subtitle D program if that is a factor that is driving EPA to pursue regulating CCRs under the Subtitle C option. This would allow EPA the option to further regulate CCRs without being required to label CCRs as hazardous waste; thereby, elimina ting767

concerns associated with beneficially using a hazardous waste.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09530

- 11 

### Organization 1 

### : PSEG Power LLC and Public Service Electric and Gas 

### Commenter 1 : Eric B. Svenson Commenter Type: Electric Utility Com pany Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.2 

### Comment Excerpt Text: XII. EPA Should Develop Subtitle D Rules With Direct EPA Enforcement Authority

EPA has expressed concern that the Subtitle D option does not allow EPA to require the states to implement the Subtitle D CCR controls through state permitting programs, approve the adequacy of the state programs, or enforce the regulati ons against non compliant facilities [75 Fed. Reg . at 35194]. EPA has made this determination based on its authority under RCRA section 4004 for purposes of developing Subtitle D controls for CCRs [75 Fed. Reg. at 35193

- 35194].

PSEG believes Sections 4010(c) and 4005(c) of RCRA could provide the basis f or EPA to promulgate a Subtitle D option for CCR’s permitted by states, but enforced at a federal level. This approach would provide the Agency with enforcemen t authority under a Subtitle D program, while maintaining a state permitting program, thereby pr eventing the duplication of
federal and state controls that Bevill Amend ment directs EPA to avoid.

In this regard EPA could evaluate existing state controls to validate their ability to adequately permit CCR disposal units (as is the case with municipal solid waste landfills under 40 C.F.R. Part 258) and administer controls, where federal oversight can apply to ensure compliance with the applicable regulatory requirements. Such an approach would allow for the necessary state involvement in administrating Subtitle D and ensure appropriate regulatory controls available via federal oversight.

While PSEG believes EPA has the authority to enforce Subtitle D regulations, if EPA believes that it does not have the appropriate authority, then EPA could consider a legislative solution and ask for enforcement authority under Subtitle D through a statutory adjustment. At a minimum, PSEG encourages the Agency to pursue this legislative path to obtain the necessary authority to
enforce under Subtitle D if EPA believes this is the only impediment to a Subtitle D program for
CCR’s.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be768

implemented a nd enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### C omment 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: 7.1 

### 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 coa l ash. [Footnote 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] In fact, if current state laws and practices are any indication, this expectation remains highly unlikely.

In at least ten states that produce large amounts of coal ash, there is no law requiring monitoring of operating coal ash ponds. [Foo tnote 59: 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. ix, available at: http://www.environmentalintegrity.org/news_reports/documents/INHARMSWAY_FINAL3.pd (These states are: Alabama, Arizona, Georgia, Indiana, Ohio, MIssissip pi, Missouri, New 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 N ew 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.env ironmentalintegrity.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.html] 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 monito ring, corrective 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%20 Damage%20Report1.pd769

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.cleanenergy.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 monitor ing for these sites, 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/d ocs/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, available 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 pai d for corrective 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 millio n 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, Mar yland 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 with toxic pollutants. [Footnote 68: Coal Ash: The Hidden Story, by Kristen Lombardi, Center for
P ublic 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 to 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.publicintegrit y.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, C enter 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]

Many of Waterkeeper Alliance’s US member programs expe rience 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 o fficials regarding 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 Car olina 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 high770

hazard potential rating, using the criteria developed 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/ind ustrial/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 hole 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 News. 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.

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 h ave 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 analyzed. 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. [Foot note 76: Appalachian 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 Carolina:

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 exten ds far beyond the 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”,771

because they are not require d to monitor there, 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 violation s in conjunction 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 State.” [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 clear ly 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 h igh as 7.1 parts 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 selenium 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 which reproductive and physiological damage occurs. Therefore, this 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 f rom homes located 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 Cle an Water Act NPDES 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, Matthe ws, 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 Caro lina’s water quality 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 part s 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 concent rations of 12,700; 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 bi llion concentrations 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 permitt ed these discharges through its NPDES program for decades and is in the process of re

- issuing NPDES permits without heavy772

metal concentrations limits for known coal ash constituents.

In Tennessee, our Upper Watauga Riverkeeper created a research team of aquatic toxicologists 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 h alf 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 te am:

[Please see 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 weight 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)]

[Pl ease see attachment to view a picture of the Histological sections of catfish gills]

[Please see attachment to view a picture of a normal largemouth bass]

[Please see attachment to view a picture of a compromised Largemouth Bass]

[Please see attachme nt to view a picture 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 sunfish 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 Wat auga Riverkeeper 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 be low from the TVA 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 drinking 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 r esult of coal ash. 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.77 3

[Please see attachment to view a picture of an EPA advi sory on the Emory 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 exc eeded 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 state 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 Mou ntain Island Lake, 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, Alab ama from the irresponsible
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 an d the environment 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. Regulat ion under Subtitle 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

- off controls, and financial assurance are put into place. [Footnote 80: E PA Proposed Rule, 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 V and IX of the preamble for discussions as t o how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s st atutory authorities under a subtitle D rule. The commenter is also referred to the supporting documentation and preamble discussion on damage cases.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09766

- 1 

### Organization 1 

### : Labadie Environmental Organization (LEO) 

### Commenter 1 : Scott White, Washington University Environmental Law Clinic on behalf of the Labadie Environmental Organization (LEO) Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Oth er Sections: 3.1.1 

### Comment Excerpt Text: The crucial difference between subtitles C and D is that the former involves EPA in the key regulatory role, whereas the latter keeps in place the existing system with states providing whatever regulatory oversight may exists. LEO strongly believes that the proposed regulations under RCRA Subtitle D (including the D

- prime variation) would not adequately protect the774

health and environment in Missouri, and urges EPA to regulate disposal of coal combustion
waste under Subtitle C. As these comments demonstrate, using our experience in Missouri as an example, state regulatory control of coal ash has not protected the public health or the
environment. Response: The Agency acknowledges and appreciates the comment, the comm enter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subt itle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### 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: 7.1 

### Comment Excerpt Text: The lesser effectiveness of the subtitle D approach, which would 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 of states have permitting programs for surfa ce 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 require ments 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 performance under a subtitle DCCR program larg ely 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 acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09885

- 20 

### Organization 1 

### : Progress Ener gy, Inc. 

### Commenter 1 : Caroline Choi Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:775

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: EPA has the authority to develop Subtitle D rules administered by the states with direct EPA enforcement authority

One of EPA’s stated concerns with the Subtitle D option is that it would not allow EPA to require the states to implement the Subtitle D CCR controls through state permits, approve the adequacy of the stat e programs or enforce the regulations against non

- compliant facilities. This concern is misplaced. EPA is underutilizing the full scope of its authority under Subtitle D by looking solely to RCRA Section 4004 for purposes of developing Subtitle D controls for CCRs. EPA can utilize the same combination of RCRA statutory authorities (i.e., RCRA Sections 4010(c) and 4005(c)) for establishing controls for CCR disposal units that it employed in promulgating federally enforceable Subtitle D rules for municipal s olid waste landfills and for

non

- MSWLFs that receive household hazardous waste and small quantity generator waste under
40 CFR Parts 257 and 258.

The combination of these two Subtitle D provisions enables EPA to promulgate nonhazardous
waste rules for CCR s that can be directly administered through state permitting programs and backed by direct EPA enforcement powers in those states that fail to adequately implement the federal rules. Such an approach offers a win

- win for EPA: it provides the agency with th e enforcement authority it desires under a Subtitle D CCR regulatory program while enabling the states to have a prominent role in the administration of any Subtitle D CCR rules, thereby preventing the duplication of federal and state controls in keeping w ith the Bevill amendment.

Progress Energy appreciates that development of a proposed Subtitle D regime allowing for administration of the regulations by qualified state programs, whether under RCRA section 4010(c) or through some other mechanism, will nec essitate issuance of a supplemental proposal. Nonetheless, this additional procedural step is necessary to ensure promulgation of an environmentally sound regulatory program for CCRs that allows for appropriate state involvement. Such an approach is consis tent with the rulemaking record and the dictates of the
Bevill amendment

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be impl emented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10017

- 8 

### Organization 1 

### : Salt River Project (SRP) 

### Commenter 1 : Daniel J. Casiraro Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:776

Other Sections: 4.5 2.1.3 2.1.4 

### Comment Excerpt Text: In its proposal, EPA appears to ignore the long rulemaking record relating to CCRs. Over the last twenty years, EPA has provided two Reports to Congress and issued two Regulatory
Determinations that un equivocally found that CCRs do not warrant regulation as a hazardous waste. Further, the Reports reiterate the fact that states are the most appropriate regulatory agencies for regulation of CCRs and noted that EPA would retain its existing regulatory
auth ority under RCRA's imminent and substantial endangerment provisions under RCRA Section 7003. If EPA is now concerned with its ability to enforce a Subtitle D program, EPA should look to the federal enforceable regulations for municipal solid waste landfill s ("MSWLFs") under 40 CFR Part 258, as authorized by RCRA Sections 4010(c) and 4005(c) for guidance. The MSWLF regulations provide states with program implementation and regulatory authority over MSWLFs while allowing EPA to step in when states do not fulf ill their obligations.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referre d to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10019

- 6 

### Organization 1 

### : Spalding & Hilmes, PC 

### Commenter 1 : Rosemary G. Spalding and Kathryn A. Watson, on behalf of Springer family et
al Commenter Type: Law Firm
Classification: Substantive Comment Category:
Current Task: Examine Conte xt Assigned/Due:
Other Sections: 2.1.2 

### Comment Excerpt Text: EPA's other proposed approach is inadequate to fill the gaps and relies too heavily on states.
Subtitle D of RCRA establishes a framework for Federal, State, and local government cooperation in controlling the management of nonhazardous solid waste. The federal role is to provide minimum nationwide standards for protecting human health and the environment, and to providing technical assistance to states for planning and developing their own wast e management practices. The actual planning and direct implementation of solid waste programs under RCRA subtitle D remains a state and local function, and the act authorizes States to devise programs to
deal with State

- specific conditions and needs. In co ntrast to subtitle C, RCRA subtitle D requirements relate only to the disposal of the solid waste, and EPA does not have the authority to establish requirements governing the generation, transportation, storage, or treatment of such wastes prior to disposa l. Moreover, EPA would not have administrative enforcement authority to enforce any RCRA subtitle D criteria for CCR facilities, authority to require states to issue permits for them or oversee those permits, nor authority for EPA to determine whether any state permitting program for CCR facilities is adequate. Subtitle D of RCRA also provides less777

extensive authority to establish requirements relating to the cleanup (or corrective action) and financial assurance at solid waste facilities. Under subtitle D, EPA would establish national criteria for location standards, composite liner requirements (new landfills and surface impoundments would require composite liners; existing surface impoundments without liners would have to retrofit within five years, or ce ase receiving CCRs and close); groundwater monitoring and corrective action standards for releases from the unit; closure and post

- closure care requirements; and requirements to address the stability of surface impoundments. States or
citizens could enforc e the requirements under RCRA citizen suit authority; the states could also enforce any state regulation under their independent state enforcement authority

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10019

- 7 

### Organization 1 

### : Spalding & Hi lmes, PC 

### Commenter 1 : Rosemary G. Spalding 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:

Subtitle C is the only option to ensure protection of human health and the environment from the impacts of CCR such as those suffered by our clients. The State of Indiana does not have the incentive or resources to operate and enforce a program to regulate CCR under sub title D in a way that will be protective. According to the CCR rule preamble, Indiana is third largest generator of CCR in the nation. Furthermore, Indiana relies heavily on coal

- fired electricity generation, and promotes its low cost in attracting jobs to Indiana. The true costs of coal

- fired electricity, such as the impacts on human health and the environmental, are not factored into the electricity rates Indiana consumers pay. EPA estimates that Subtitle D regulations will have a 48% compliance rate vs. 100% for Subtitle C. Even that rate is likely to be lower in Indiana
where IDEM abolished its Office ofEnforcement in 2009.

A clear example ofthe differences between subtitle C and subtitle D regulation is provided by the air requirements, which are of p rimary concern to our clients. Both subtitle C (§ 264.1308) and D (§257.80) require management of CCR landfills in a manner that does not violate 35 llg/m3, apparently based on the fine particulate (PM2.s) National Ambient Air Quality Standard. However, un der subtitle C, EPA would be able to enforce this requirement, including using its authority to require the source to demonstrate compliance with this standard under Section 114 of the Clean Air Act. Under subtitle D, federal enforcement tools would not be available, nor does IDEM have adequate tools to ensure compliance with this requirement. Furthermore, since778

subtitle C would be "cradle

- to

- grave" regulation, § 264.1308 includes requirements for the following:

(d) Tanks, containers, buildings and pads u sed for the storage must be managed to control the dispersal of dust. Pads must have wind protection that will ensure comparable levels of control.

(e) CCRs transported in trucks or other vehicles must be covered or otherwise managed to
control the wind dispersal ofdust consistent with the standard in paragraph (a) ofthis section unless an alternative tandard has been established by the Regional Administrator.

The subtitle D regulations do not include these requirements or otherwise address CCR handling facilities, which are also a significant source of fugitive dust, in our clients' experience.

For these reasons we strongly support and urge EPA to adopt the subtitle C version of the rules.

Response: The Agency acknowledges and appreciates the commen t, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule. In addition, the commenter is referred to the preamble discussion and regulatory language that specifically addressees fugitive dust control at CCR landfills and CCR surface impoundments.



### 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 7.1 

### 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 wherewi thal to deal with CCR's. Citizen's suits are only somewhat effective in addressing monetary costs to individual landowners. But these suits have not addressed the root of the problem, which is the fact that the ponds are leaking in the first place. The ind ustry 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 work for the future years. On the other hand, Subtitle C regulations would provide citizens with a handl e to address and perhaps stop coal ash problems779

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" s urrounding beneficial uses is unmerited. The rules are written specifically to exempt beneficial uses and, as indicated by the EPA's own studies, would increase 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 referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 47 

### 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: D. EPA Has The Authority To Develop Subtitle D Rules Administered By The States With Direct EPA Enforcement Authority

One of EPA‘s stated concerns with the Subtitle D option is that it would not allow EPA to require the states to implement the Subtitle D CCR controls through state permits, approve the adequacy of the state programs, or enforce the regulations against non

- compliant facilities. 75 Fed. Reg. at 35194. This concern is misplaced. EPA is underutilizing the full scope of its authority under Subtitle D by looking solely to RCRA Sect ion 4004 for purposes of developing Subtitle D controls for CCRs. 75 Fed. Reg. at 35193

- 35194. EPA can utilize the same combination of RCRA statutory authorities

– i.e., RCRA Sections 4010(c) and 4005(c)

– for establishing controls for CCR disposal units t hat it employed in promulgating federally enforceable Subtitle D rules for municipal solid waste landfills (“MSWLFs”) and for non

MSWLFs that receive household hazardous waste and small quantity generator waste under 40
C.F.R. Parts 257 and 258.

The combi nation of these two Subtitle D provisions enables EPA to promulgate non

- hazardous waste rules for CCRs that can be directly administered through state permitting programs and backed up by direct EPA enforcement powers in those states that fail to adequatel y implement the federal rules. Such an approach offers a win

- win for EPA: it provides the Agency with the enforcement authority it desires under a Subtitle D CCR regulatory program while enabling the states to have a prominent role in the administration of any Subtitle D CCR rules, thereby preventing the duplication of federal and state controls in keeping with the Bevill Amendment.780

1. RCRA Sections 4010(c) and 4005(c)

By way of background, RCRA Section 4010(c) was added to RCRA as part of the 1984
Hazard ous and Solid Waste Amendments for purposes of having EPA upgrade its regulations with respect to those Subtitle D facilities “that may receive hazardous household wastes or hazardous wastes from small quantity generators” (referred to by EPA as “CESQG was tes”), including “facilities potentially receiving such wastes.” 42 U.S.C. § 6949a(c). As EPA knows, the standards developed under this provision must be those necessary to “protect human health and the environment” and “[a]t a minimum [the criteria] for f acilities potentially receiving such wastes should require groundwater monitoring as necessary to detect contamination, establish criteria for the acceptable location of new or existing facilities, and provide for corrective action as appropriate.” Id.

Se ction 4005(c), which was enacted as a companion provision to section 4010(c), directs the states to adopt the new regulations for Subtitle D facilities that may receive household or CESQG wastes and, of critical importance here, specifically authorizes EPA to enforce such regulations in those states that fail to adequately adopt the federal rules. Specifically, that section provides in pertinent part that, after EPA has promulgated the revised criteria under section 4010(c) for the specified Subtitle D faci lities, “each State shall adopt and implement a permit program or other system o[f] prior approval and conditions to assure that each solid waste management facility within such State which may receive” household or CESQG hazardous waste “will comply with” the revised criteria promulgated by EPA under RCRA § 4010(c) for such facilities. RCRA § 4005(c)(1)(B), 42 U.S.C. § 6945(c)(1)(B).

EPA is then required to determine whether each state “has developed an adequate program” to implement the revised criteria. RCRA § 4005(c)(1)(C), 42 U.S.C. § 6945(c)(1)(C). If EPA determines that a state has not done so, the Agency “may use the authorities available under sections 6927 and 6928 of this title [i.e., RCRA Subtitle C enforcement and inspection authorities]” to en force such revised criteria. Id. EPA has correctly described this authority as “significant in that it represents the first authority for EPA enforcement of regulatory requirements under Subtitle D.” 53 Fed. Reg. 33314, 33383 (Aug. 30, 1988) (emphasis adde d). Therefore, the Agency has already acknowledged that Subtitle D regulations promulgated under these provisions of the statute are enforceable by EPA.

2. EPA‘s Implementation of Section 4010(c)

EPA‘s history in developing regulations under Section 4010 (c) is informative in underscoring why the Agency can use this authority, in conjunction with RCRA section 4005(c), in establishing federally enforceable Subtitle D rules for CCRs. The Agency implemented the Section 4010(c) regulations in phases. In 1991, the Agency issued upgraded Subtitle D standards for all MSWLFs. These regulations (codified in the Subtitle D regulations at 40 C.F.R. Part 258) establish minimum federal criteria for MSWLFs, including location restrictions, facility design and operating c riteria, liner requirements (for new MSWLFs), groundwater monitoring requirements, corrective action requirements, financial assurance requirements, and closure and post

- closure care requirements. These criteria apply to any MSWLF that accepts any househol d waste, whether or not such waste would be considered a household hazardous waste. See781

definition of “municipal solid waste landfill unit” at 40 C.F.R. § 258.2. In other words, the Subtitle D regulations for MSWLFs promulgated under Section 4010(c) apply to all MSLWFs, even though such facilities may not actually receive household hazardous waste or CESQG hazardous wastes. [Footnote 35: This is consistent with the statutory language in section 4010(c) directing EPA to upgrade the Subtitle D standards for a ny Subtitle D facilities that “may” receive household hazardous waste or CESQG hazardous waste or may “potentially receive” such wastes.]

EPA recognized when developing the MSWLF rules that the scope of Section 4010(c) extends beyond MSWLFs to “the subset of solid waste disposal facilities ?that may receive hazardous household wastes or hazardous wastes from small quantity generators.‘“ See 53 Fed. Reg. at 33322 (emphasis added). For example, EPA stated that it was “concerned about the estimated 28,000 ind ustrial solid waste disposal facilities and 2,600 construction/demolition landfills,” but was limiting the scope of this initial rulemaking “to MSWLFs because there are insufficient data currently available to develop requirements for these other facilitie s.” Id. at 33326.

In 1996, EPA issued its second round of Section 4010(c) regulations for nonmunicipal non

hazardous waste disposal units that receive CESQG hazardous waste. [Footnote 36: The timeframe for issuance of these second round of regulations was dictated by a lawsuit brought by Sierra Club alleging that EPA was required to issue its Section 4010(c) rulemakings by the statutory deadline in Section 4010(c). Without any adjudication of law or fact, EPA entered into
a Consent Decree with Sierra Club agreeing to issue the second round of Section 4010(c) regulations by June 1, 1996. See Consent Decree in No. 93

- 2167 (D.D.C.).] These upgraded Subtitle D criteria establish standards pertaining to location restrictions, groundwater monitoring
and correctiv e action. See 40 C.F.R. Part 257, Subpart B. Like the upgraded MSWLF Subtitle D rules, EPA has direct regulatory enforcement authority for these rules in states that the Agency determines have not properly implemented the revised criteria. See 61 Fed. Reg. 34252, 34266 (July 1, 1996).

During this second rulemaking, EPA once again addressed the scope of Section 4010(c). A commentor pointed out that the statutory language in Section 4010(c) directing EPA to upgrade
the Subtitle D criteria for facilities that “may receive” CESQG hazardous waste and for “facilities potentially receiving” CESQG hazardous waste required the rules to extend to all Subtitle D facilities that could accept such wastes (even if they in fact did not receive CESQG hazardous wastes). Id. at 34254. At that time, however, EPA took the position that section 4010(c) only was intended to reach facilities that actually received household hazardous or CESQG wastes. Id. [Footnote 37: EPA did not include CCRs in this second round of regulations
be cause CCRs were on a different statutory study schedule than most other of the solid waste disposal facilities subject to the Section 4010(a) study schedule. USWAG agreed with EPA at the time that it would be premature to include CCRs in this rulemaking un til the Bevill Amendment study process for CCR wastes was complete. Now that the Bevill study process is complete and EPA has determined that CCRs do not warrant hazardous waste regulation under RCRA Subtitle C, Section 4010(c) provides EPA with the approp riate statutory authority for adopting non

- hazardous Subtitle D rules for CCRs.] In fact, however, Section 4010(c) does not contain this limitation, but applies to any Subtitle D facility that “may” or has the “potential” to receive household or CESQG haza rdous wastes. The Agency itself recognized this broad782

statutory reach when it issued the Section 4010(c) regulations for MSWLFs, which apply to any MSWLF that “may” receive household hazardous waste or CESQG hazardous wastes, regardless
of the fact of whet her the MSWLF unit actually received such wastes.

3. Adoption of Regulations for CCRs under Section 4010(c)

The plain language of Section 4010(c) directs EPA to promulgate upgraded Subtitle D standards for “facilities that may receive” CESQG hazardous wa stes and “for facilities potentially receiving such wastes.” 42 U.S.C. § 6949a(c) (emphasis added). This language applies on its face to CCR disposal units, as they are Subtitle D solid waste management units that, under RCRA‘s statutory scheme, may receiv e CESQG hazardous waste and clearly have the potential to receive such wastes. Indeed, the legislative history to Section 4010(c) underscores that Congress did not intend EPA to construe the statute in such a narrow manner, as “[t]he impetus for requiring these revisions is primarily the concern for potential disposal of hazardous materials with nonhazardous wastes. S. Rep. No. 98

- 284, at 50 (1983), reprinted in “A Legislative History of the Solid Waste Disposal Act, As Amended,” at 2076 (1991). In short,

n othing in the plain language of the statute limits these provisions to only those facilities that “actually receive” household hazardous wastes or CESQG wastes. If Congress had intended to limit the statute in this manner, it would have written the law to say just that; it did not.

In light of the above, USWAG urges EPA to re

- evaluate its statutory authorities under RCRA Sections 4010(c) and 4005(c) as applied to CCR disposal units. Section 4010(c) directs EPA to establish fully protective Subtitle D dispo sal standards for CCRs, including: groundwater monitoring as necessary to detect and respond to groundwater contamination, corrective action, and criteria for the acceptable location of new or existing facilities. These criteria are fully
consistent with t he proposed Subtitle D controls in the instant proposal.

Equally important, development of CCR regulations under Section 4010(c) would allow for a meaningful and coordinated state role in the administration of the CCR rules, while providing
EPA with direc t enforcement authority in those states that fail to properly implement the federal rules. This balancing of the federal/state roles will ensure that there is a full and uniform application of the CCR Subtitle D rules in all the states and would avoid the duplication of federal/state CCR controls as directed by the Bevill Amendment.

As noted above, USWAG appreciates that development of a proposed Subtitle D regime allowing for administration of the regulations by qualified state programs, whether under RCR A Section 4010(c) or through some other mechanism, will necessitate issuance of a supplemental proposal. Nonetheless, this additional procedural step is necessary to ensure promulgation of an environmentally sound regulatory program for CCRs that allows fo r appropriate state involvement. Such an approach is consistent with the rulemaking record and the dictates of the
Bevill Amendment.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preambl e for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a783

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the pream ble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10495

- 56 

### 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: Lastly, as EPA knows, subtitle D regulations are not federally enforceable. EPA cannot leave unmotivated states and private citizens to undertake the extraordinarily resource

- intensive tas k of enforcing the subtitle D criteria through citizen suit litigation. Given the overwhelmingly widespread damage that is occurring as a result of unsafe disposal across the country, it would be impossible to achieve effective enforcement at the scale tha t is needed through private actions. The inevitable outcome of “D” regulation is unchecked damage to human health and the
environment in violation of RCRA. Response: The Agency acknowledges and appreciates the comment, the commenter is
referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition , Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### 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: 7.1 

### Comment Excerpt Text: Although Pennsylvania has among the most extensive coal ash disposal regulations in the country, requiring liners, ground water monitoring, and other protections that many other states in the country 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

pro tection of Pennsylvanians as well.

The Pennsylvania regulations have grandfathered 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, dangerou s “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 regulation s784

than most other states and especially most other coal states. I’d like to talk today about some of 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 c oal ash.

When you are deciding whether to regulate coal ash under the federally 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 improvem ents when his drinking well, about 1,000 yards from FirstEnergy’s unlined Little 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 ma ximum contaminant level, causing him to abandon his
home. Is his hard

- earned 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 ADE P for fugitive dust emissions and arsenic pollution, and despite the Planning 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 regulati ons establishing a mandatory setback. Because Little Blue (a misnomer for an 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 1 992, 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. Thi s High Hazard impoundment is kept back from the Ohio River and the Ohio community 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 requirements 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 ac knowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion rel ating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule. Discussion of damage cases can be found in Unit XI of the preamble as well as the technical support document found in the docket supporting this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10594_DC

- 008

- 2 

### Organization 1 

### : Physicians for Social Responsibility (PSR) 

### Commenter 1 : Barbara Gottlieb Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.1 

### Comment Excerpt Text:785

For that reason, Physicians for Social Responsibility calls on the EPA to discharge its duty to protect the environment, by applying t he strictest possible levels of control over coal ash disposal. We strongly support Subtitle C as the only option currently on the table that would adequately protect human health. We call for:

- Federal regulation of coal ash disposal. State efforts are inconsistent and frequently too weak.

- Phase

- out of wet storage, which poses too great a risk of leaching, leaking and spilling.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preambl e discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10600_DC

- 014

- 3 

### Organization 1 

### : Izaak Walton League of America (IWLA) 

### Commenter 1 : Scott Kovarovics Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.1 

### Comment Excerpt Text: The majority of states do not require basic safeguards at most coal ash landfills and ponds. Under the Subtitle C option, all states w ould set equivalent standards for the generation, storage, transport and disposal of coal waste, require permits for disposal facilities, and phase

- out waste ponds. Proper disposal would require composite liners, leachate collection systems, adequate

groun dwater monitoring and corrective action, all of which are necessary to afford more adequate protection for public health, fish and wildlife.

Absent this comprehensive approach of Subtitle C, states would be given only suggested guidelines for disposal saf eguards that states mayor may not choose to follow. Moreover, the EPA would have no authority to enforce the guidelines. This weak approach (Subtitle D) is completely inadequate to address proper handling and disposal of the second largest industrial

waste stream in America.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10612_DC

- 026

- 1 

### Organization 1 

### : Earthju stice 

### Commenter 1 : Emily Greenlee786

Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.1 9.2.3 

### Comment Excerpt Text: Over the past year, I have spent a great deal of time researching coal combustion waste, and have learned about the dangers of coal ash stored in unlined ponds, where it can contaminate groundwater with toxins like arsenic and lead. EPA’s own data shows coal ash can increase cancer risk for those living nearby to over 23,000 times the EPA’s acceptable cancer risk. Coal ash from an American company has also been blamed for a spate of skin lesions, respiratory ailments, and horrific birth defects in the Dominican Republic.

Given the serious health threats posed by coal ash, it is particularly troublesome that coal ash impoundments are disproportionately located in low

- income communities, where residents are more likely to rely on groundwater supplies and less likely to have access to medical insurance
and c are.

According to the EPA’s own environmental justice analysis for the proposed coal ash regulations, the myriad risks of coal combustion waste, quote, “may have a disproportionately higher effect on low

- income populations.” Earthjustice’s environmental j ustice analysis found that almost 70% of ash impoundments in the US are in areas where household income is lower
than the national median.

I would like to enter into the record three maps, showing poverty rates and the location of ash impoundments in Alab ama, Louisiana, and South Carolina. In South Carolina, about 16% of residents living near ash impoundments are below the poverty line. That number climbs to around 25% in Louisiana. These figures are well above the national average.

In Alabama, a map of w hich can be seen on this poster, around one

- fifth of residents living near coal ash ponds are below the poverty line. All areas that show up in blue on the map have poverty rates that exceed the national average.

Most notoriously, the Arrowhead Landfill i n Perry County (shown here, in a census tract with a 33% poverty rate), has been the dumping ground for ash recovered after the TVA ash spill in Kingston, Tennessee, in December of 2008. The ash flowing into this low

- income and predominantly African Americ an community at a rate of about 8,500 tons per day contains dangerous levels of arsenic, lead, and other heavy metals.

Strict federal guidelines are needed to protect the low

- income populations living near Arrowhead and other coal ash impoundments

— particu larly because Alabama is one of fifteen states which has explicitly stated that it will not adopt stricter state regulations if EPA chooses to regulate coal
ash under Subtitle D.

As the TVA spill and dozens of other damage cases have demonstrated, state r egulations of coals ash are often insufficiently protective of human health and the environment. Only federally787

enforceable Subtitle C regulations can fully protect human health and the environment from coal ash, in low

- income communities and throughout th e United States.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Uni t IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10631_DC

- 046

- 3 

### Organization 1 

### : Sierra Club 

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



### Comment Excerpt Text: We are having this conversation today because states have failed, time and again, to adopt and enforce such common sense safeguards, choosing cheap and easy disposal practices that threaten public health instead. Our technical comments will address our concerns in more detai l, but evidence shows that too many states, through lack of regulation or lack of enforcement, allow dangerous coal ash disposal practices to persist. States around the country allow coal ash to be disposed of in unlined pits and ponds, used as structural fill without protections, or used in all manner of other unsafe "beneficial uses" where the arsenic, selenium and other toxins can seep out into groundwater and surface waters, rivers, lakes and streams.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to re gulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10638_DC

- 078

- 1 

### Organization 1 

### : League of Conservation Voters (LCV) 

### Commenter 1 : Sara Chieffo Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.1 

### Comment Excerpt Text:788

I am here to encourage the EPA to adopt strong, federally

- enforceable coal ash regulations. U.S.
coal

- fired power plants generate more than 130 million tons of toxic coal ash annually. Coal ash and other combustion wastes are not currently subject to federal regulation and most state laws
are either far too weak or non

- existent.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10670_DC

- 055

- 3 

### Organization 1 

### : Maryla nd 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: 7.1 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 tha t pollution
has traveled.

Many states require no groundwater monitoring at all, 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 as h ponds while they are still operational. How then can they determine that the 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,

a gricultural lands and groundwater?

Illegal open dumping in violation of federal 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 g roundwater at these sites. But because open Coal Combustion Waste dumping regulations 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 the789

federal 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 oper ators to comply with those requirements indicates that "guidelines" under subtitle 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 must take basic steps to protect the off

- site environment at CCW sites, and set limits on the discharge
of leachate or wastewater that are based on best available treatment and cont ainment 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 ma ny more, coal ash must be regulated under RCRA subtitle C, as special waste by US EPA, with all the attenuated safeguards that requires.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the pre amble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the p reamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10684_DC

- 072

- 1 

### Organization 1 

### : Sierra Club 

### Commenter 1 : Margaret Hoerath Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.1 4.2.1 

### Comment Excerpt Text: The status of coal ash regulation is a patchwork, unreliable system which varies state to state. This system does not adequately handle coal ash waste and oft en results in coal ash ponds that leak toxins. Subtitle C will change this, protecting public health. Federally enforceable standards, upheld by the EPA, are what we need. Citizen lawsuits, which are long, drawn out and hard for
affected communities to aff ord, would be the only mode of enforcement under the weaker Subtitle D. Please support Subtitle C which will phase out coal ash ponds, and will effectively protect individual’s and communitie’s health and well

- being.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the d ecision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.790



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10700_DEN

- 012

- 1 

### Organization 1 

### : Greenpeace USA 

### Commenter 1 : Robert Gardner Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.1 

### Comment Excerpt Text: Good Evening. My name is Robert Gardner and I am Greenpeace USA’s Coalition and Partnership representative. I am here today to support your efforts to create a federal minimum coal ash disposal standard. It is clear that coal ash must be treated as a “special waste” under subtitle C of the Resource Conservation and Recovery Act. I am here representing our millions of members worldwide saying that coal ash is hazardous and that state by state enforcement is just not enough. We need federal regulation to ensure that dangerous coal ash isn’t just shipped to the state with the most lax reg ulatory scheme.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Uni t IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### 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 Task: Examine Context Assigned/Due:
Other Sections: 7.1 

### 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

cont amination of water and land by toxic heavy metals. This approach has not and will not protect streams, ponds, rivers, lakes and other waters.

Everyone in this room probably remembers the Kingston TV A Spill in Harriman, Tennessee?
The failure of that slud ge 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 dispos al of coal ash. None. This is unacceptable.791

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10747_DEN

- 059

- 3 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG) 

### Commenter 1 : Jim Roewer Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.5.1 3.1.2 

### Comment Excerpt Text: Moreover, one of EPA's stated concerns with the Subtitle D option is its perceived lack of federal enforceability under this approach. However, EPA does have the authority to issue federally enforceable Subtitle D rules for CCRs; it simply is not using that authority. I would refer EPA to the same RCRA provisions under which it issued federal ly enforceable Subtitle D rules for municipal solid waste landfills. The first provision is section 4010( c), which directs EPA to develop upgraded Subtitle D standards for facilities "that may receive" or may potentially receive
"hazardous household waste s" or conditionally exempt small quantity generator wastes. A related provision is section 4005(c), which authorizes EPA to enforce these upgraded Subtitle D regulations in those states that fail to adopt the federal rules. EPA itself has described this

au thority as "significant in that it represents the first authority for EPA enforcement of regulatory requirements under Subtitle D." [Footnote 1: 53 Fed. Reg. 33314, 33383 (August 30, 1988)] CCR disposal facilities fall within the scope of EPA's authority u nder these provisions, as they are without question Subtitle D facilities that "may" accept household hazardous wastes and CESQG wastes, and clearly have the "potential" to receive such wastes.

The development of Subtitle D regulations for CCRs under sect ion 4010 of RCRA offers a win

win option for EPA and the public. While this approach would likely require a supplemental proposal, it will ensure that EPA will "get it right:" providing the Agency with the enforcement authority it desires, while avoiding t he unnecessary and adverse implications of Subtitle C. There is simply no reason for EPA to pursue the Subtitle C approach when it can develop federally enforceable rules for CCRs under the less controversial, yet equally protective, Subtitle D non

hazardo us waste program.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10995_CHA

- 030

- 2 

### Organization 1 

### : Concer ned Citizens of Giles County, Virginia 

### Commenter 1 : Darlene Cunningham Commenter Type: Advocacy Group792

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.2.3 3.1.1 

### Comment Excerpt Text:

These hearings would not be necessary if states and industry were genuinely concerned about protection of our water and if they were disposing of their waste responsibly. The fact is, there must be effective, enforceable federal regulation for coal waste if publ ic health is to be valued over corporate profits. Subtitle C is the only rational choice. It is time to listen to citizens whose lives have been impacted by illness, contaminated wells, loss of property, and loss of property
value due to this toxic waste. It is time to listen to the biologists, it is time to listen to the Riverkeepers, it is time to take seriously the numerous studies, including EPA’s own Risk Assessment, which has made very clear the dangers of coal waste.

After decades of debate, decades of intense lobbying from industry, and decades of inaction, it is now time to regulate coal waste for what it is ... a clear and present danger to public health!

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- R CRA

- 2009

- 0640

- 11018_CHA

- 053

- 2 

### Organization 1 

### : Sphere One, Inc. 

### Commenter 1 : Ryan Brownhill Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.1 

### Comment Excerpt Text: The environment can be protected with strong regulations under Subtitle D. We in the recycling CCP industry support strong regulation of CCRs under Subtitle D with federal enforcement authority. The EPA can't be afraid to lead! With our economy sputtering, you would think EPA could work with Congress, get direct enforcement authority and proceed to regulate CCRs under Subtitle D without creating this damaging stigma for CCP's!

If there is even SOME question about how a Subtitle C classification would be de trimental to business, why do it? Especially when there is a technically sufficient solution that carries virtually no risk to beneficial use of CCP's. A Subtitle D classification allows the EPA to live up to it's responsibilities to protect the environmen t as well as its responsibility to all the hardworking Americans whose livelihood depends on the reuse of CCP's.

Response: The commenter is referred to Unit IV of t he preamble for a discussion o f EPA’s 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.793



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11195_CHI

- 026

- 3 

### Organization 1 

### : Prairie State Generating Company, LLC (PSGC) 

### Commenter 1 : Mark A. Shepherd Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.5 4.2.2 

### Comment Excerpt Text: We believe that the States have an important role to play in the regulation of CCRs and should take the lead on regulating these materials. The belief, that federal enforceability under the Subtitle D option is inadequate to assure that companies manage CCRs safely, is erroneous. The regulations will be enforceable by the States and the public. Violators will be subject to significant civil penalties, just as they are now for municipal solid waste landfills that have at best similar challenges and at worst pose more risk than mono

- filled CCR landfills operated
under sub title D.

As published, the proposed rules also have numerous defects and problems, even under the Subtitle D option. They seem to have been hurriedly compiled and many parts of the rule are ill
conceived and contradictive.

We urge the EPA to withdraw t he current proposal and to work to propose regulations under Subtitle D that recognize that CCRs can be managed responsibly by States without destroying the unique qualities of CCRs that allow them to be beneficially and safely reused.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11319_P

- 029

- 1 

### Organization 1 

### : Ebensbur g Power Company 

### Commenter 1 : Gary Anderson Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.2 8.6.2 

### Comment Excerpt Text: EPA's motivation to propose these rules appears to be based on what EPA has termed "proven damage cases" siting two ash impoundment accidents at Kingston, TN and Martins Creek, PA.794

This is in spite of the fact that a thorough study of the Martins Creek accident found no adverse impac ts to the river, wildlife or human health and that the Tennessee Dept of Health found no significant human health impacts due to the Kingston accident. These findings combined with the safe management of the vast majority of ash sites and beneficial uses c learly indicate that EPA is acting in a capricious manner.

While EPA sites the NRC

- NAS Study concerning ash in its preamble it ignores its scientifically based factual findings ... which include:

1. Enforceable federal standards should be established to ensure that STATES have specific authority and implement adequate safeguards.

2. Primary regulatory mechanisms that should be used to develop enforceable standards are:

• SMCRA, Joint OSM

- EPA rules; or RCRA

- D rules

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the d ecision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11357_P

- 071

- 7 

### Organization 1 

### : Sunbury Generation LP 

### Commenter 1 : Teresa Copenhaver Commenter Type: Electric Utility Facility
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.2 

### Comment Excerpt Text:

While EPA sites the NRC

- NAS Study concerning ash in its pre amble it ignores its scientifically based factual findings...which include:

1. Enforceable federal standards should be established to ensure that STATES have specific authority and implement adequate safeguards.

2. Primary regulatory mechanisms should be used to develop enforceable standards such as:

- Surface Mining Control Reclamation Act, Joint Office of Surface Mining and EPA, or the Resource Conservation and Recovery Act Subtitle D Rules

Response: The Agency acknowledges and appreciates the comme nt, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be795

implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CC R under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11374_P

- 093

- 3 

### Organization 1 

### : United States Senate 

### Commenter 1 : Bob Casey Commenter Type: Federal Elected Official
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.1 

### Comment Excerpt Text:

• I believe, and have recommended to EPA, that CCBs continue to be regulated as non

hazardou s, regardless of whether they are beneficially re

- used or placed in a landfill or impoundment

• I am not advocating that changes in the regulation of CCBs are not needed

• The events in Kingston, Tennessee in 2008 have clearly shown the need for stringen t Federal guidelines in how CCB landfills and impoundments are designed, engineered, constructed, and managed

• As such, I have also recommended to EPA that the Agency develop a set of strict, enforceable Federal design and engineering requirements under RCRA’s nonhazardous waste program for CCB landfills and impoundments

• And that these requirements include specific protocols for surface and ground water monitoring

• I believe that the continued regulation of coal combustion byproducts as non

- hazardous under RCRA’s Subtitle D nonhazardous waste program is the most appropriate course of action for the Agency to take

• Coupled with the development and promulgation of Federally enforceable requirements for the storage and monitoring of these materials und er Subtitle D, this will ensure the protection of Pennsylvania’s environment and the public health of our citizens

• While allowing Pennsylvania to continue to accrue the employment, economic, and environmental benefits of reusing these materials

Respons e: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a796

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.
Response: The commenter is referred to Unit IV of t he preamble for a discussion o f EPA’s 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

- 11572_L

- 020

- 1 

### Organiza tion 1 

### : Utility Solid Waste Activities Group (USWAG) 

### Commenter 1 : Dan Riedinger Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 3.1.2 4.5.1 

### Comment Excerpt Text: AS USWAG has testified at the last six hearings, the question for us is not whether to regulate CCRs, but how to regulate CCRS. We continue to believe, after listening to all the testimony, that “Subtitle D Prime” option, with appropriate adjustments , is the best path forward.

USWAG appreciates that there are major differences of opinion regarding this rulemaking, but we are concerned that unless EPA is able to forge a consensus position, the question of whether and how to regulate CCRs will become a protracted battle in Congress and the courts. USWAG continues to believe, however, that a consensus position can be reached that meets the fundamental objectives of EPA and the varying stakeholder that is the development of federally
enforceable standard s for CCRs that are protective of human health and the environment. As EPA has pointed out, the substantive standards between the Subtitle C and Subtitle D standards are essentially identical. Both would provide for the safe management of coal ash through the use of liner systems, groundwater monitoring, and corrective action.

Despite the similarities between the two options, opponents of Subtitle D approach are concerned that the states will not vigorously enforce the Subtitle D regulations; thus, they w ant EPA enforcement authority. Opponents of the Subtitle C option, including USWAG, are concerned that subjecting CCRs to hazardous waste regulation will result in excessive regulation, drive up energy costs and cripple beneficial use. Notwithstanding the se differences, USWAG believes that there is a path forward that would address the concerns of most the views reflected in this room and, most importantly, will ensure the successful implementation of a protective CCR regulatory program in a timely manner. Specifically, we continue to believe that EPA can develop federally enforceable Subtitle D controls for CCRs under the same authorities that it has used to develop federally enforceable Subtitle D controls for municipal solid wastes. USWAG has already pro vided EPA with the background of this approach so I won’t go into the details here. In short, however, we believe
that EPA can use its authorities under the combination of RCRA sections 4010 and 4005 to
direct the states to establish Subtitle D controls an d permit requirements for CCR disposal facilities and to step in and directly enforce those Subtitle D regulations if the states fail to do so. EPA itself has acknowledged that these sections of RCRA are unique in that they provide EPA
with federal enforce ment authorities for Subtitle D rules. [Footnote 1: 53 Fed. Reg. 33314, 33383797

( August 30, 1988)]

The truth is that this approach

– having EPA direct the states to implement federal controls and stepping in if the states fail to do so

- is not fundamental ly different than how the Subtitle C option would be implemented, though this Subtitle D approach would be implemented on a much quicker time schedule than would any Subtitle C option. It makes no sense to risk the downsides of the Subtitle C option when E PA can achieve essentially the same results without these risks under a federally enforceable Subtitle D option. This rulemaking is too important for EPA not get it right; therefore, we urge the Agency to be creative in using its existing authorities
in Su btitle D to issue federally enforceable Subtitle D rules for CCRs. Such a result would be “win

- win” for all involved.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussio ns as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses E PA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11644_K

- 059

- 2 

### Organization 1 

### : University of Tennessee 

### Commenter 1 : Gregory Button Commenter Type: Academia
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The TVA ash spill has dramatically and tragically demonstrated the failures of relying on a patchwork of state regulation. It is imperative the EPA have direct oversight over the generation of storage, transportation, and the disposal of coal ash in order to safe guard the public and the environment. Subtitle D would continue to rely on a state

- by

- state patchwork of regulations, which has time and time again proven to be inadequate.

Response: The Ag ency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discuss ion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11736_K

- 162

- 1 

### Organization 1 

### : Environmental Intergrity Project (EIP) 

### Commenter 1 : Abel Russ Commenter Type: Advocacy Group
Classification: Substantive798

Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 7.1.1 

### Comment Excerpt Text: 1) States have failed to adequately regula te coal ash.

States would have primary regulatory authority under the subtitle D option, [Footnote 1: US EPA, Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals From Electric Ut ilities; Proposed Rule (hereinafter “Proposed Rule”), 75 Fed. Reg. 35128, 35159

- 35160 (June 21, 2010).] and we know from experience that state governments have not been able to keep up with the challenge of coal ash. [Footnote 2: Id. at 35152. There have b een 137 documented damage cases from coal ash disposal throughout the country. See Environmental Integrity Project (EIP), Earthjustice, & Sierra Club, In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment 14 (Aug. 26 ,2010), available at http://www.environmentalintegrity.org/news_Reports/documents/INHARMSWAYFINAL2.pdf; EIP &Earthjustice, Out o/Control: Mounting Damagesfrom Coal Ash Waste Sites (Feb. 24, 2010), http://www.environmentalintegrity.org/news_Reports/news_02 24_1 O.php; Sierra Club, Kentucky Waterways Alliance & Global Environmental, LLC, Slow Motion Spills: Coal Combustion Waste and Water in Kentucky (May 2010), available at http://kentucky.sierrac1ub.org/resources/Environmental_ Research/Coal_ Combustion_Was te _and_Water_In_KY 042110.pdf; U.S. Environmental Protection Agency (EPA) and EPA, Office of Solid Waste, CoalCombustion Waste Damage Case Assessments (July 9, 2007).] Here in Tennessee, for example, the regulatory regime separates the regulation of landf ills from the regulation of surface impoundments. [Footnote 3: T.C.A. §69

- 3

- 108(b); Letter from Paul L. Sloan, TDEC Deputy Commissioner, to Josh Galperin, Southern Alliance for Clean Energy and Kimberly Wilson, Environmental Integrity Project, 1 (Sept. 7, 2010).] Although surface impoundments are likely to contaminate groundwater, they are only regulated at the point of surface water discharge. [Footnote 4: T.C.A. §69

- 3

- 108(b).] Landfills are regulated as solid waste, but many are eligible for lenient permi ts by rule which also fail to provide for effective groundwater monitoring. [Footnote 5: Tenn. Compo R. and Regs. 1200

- 01

- 07

- .02(1)(c)(ii).]

Response: The Agency acknowledges and appreciates the comment, the commenter is
referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II
of t he preamble discusses EPA’s statutory authorities under a subtitle D rule. In particular the commenter is referred to the Agency’s discussion in Unit IV of the preamble for an analysis of
state programs.



### Comment Number: TRANS

- ARL

- 0004

- 1 

### Organization 1 

### : Citizens for Recycling First 

### Commenter 1 : John Ward Commenter Type: Advocacy Group
Classification: Substantive799

Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.2 10.4.3 

### Comment Excerpt Text: Coal ash recycling can be done safely and effectively, and it creates significant benefits: Environmental benefits, improved product performance benefits, and economic benefits. Citizens for Recycling First supports stronger regulation of coal ash disposal and does not object
to federa l enforcement authority over that program. But if getting federal enforcement authority requires designating coal ash a hazardous waste in any setting, the effects on recycling in the United States will be decimating. The hazardous waste stigma is real. A hazardous waste stigma presents significant barriers at every step of the chain, from the people who generate coal ash to the people who specify its use to the people who incorporate it in products, right down to the end

- use consumers. How many people wan t to have something that's called hazardous waste somewhere else in their home or their school or their driveway or their roads or many of the places that we can use this material productively? While we appreciate EPA's statements that the Agency continue s to support beneficial use, actions like creating the new label of "special waste" are not helpful in shielding the users from the potential liabilities of this. And actions like shutting down the coal combustion products partnership are actually having a detrimental effect to the recycling industry today well in
advance of the conclusion of this rule. If the goal of this rulemaking is to protect the environment, then EPA should pursue policies that encourage more safe and effective recycling of coal ash as a preferred alternative to disposal. That means that we cannot use Subtitle C as a vehicle to promulgate those rules. Speaking for more than 1,500 citizens who care about the environment, please do not use Subtitle C as the way to enact these rules. We can improve disposal regulations in this country without destroying an industry that creates real benefits for our environment.

Response: The commenter is referred to Unit IV of t he preamble for a discussion o f EPA’s 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: TRANS

- ARL

- 0039

- 2 

### Organization 1 

### : Izaak Walton League of America 

### Co mmenter 1 : Scott Kavarovics Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Absent this comprehensive approach under Subtitle C, states would only be given suggested guidelines for disposal safeguards. Moreover, the EPA would lack enforcement authority. This weak approach under Subtitle D is completely inadequate to address proper handling and disposal of the second largest industrial waste stream in America.800

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the pre amble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: TRANS

- ARL

- 0109

- 1 

### Organization 1 

### : Sierra Club 

### Com menter 1 : Drew Ball Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 7.1 

### Comment Excerpt Text: We applaud EPA for recognizing the very real health and environmental 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 exte nsive work on coal ash within North Carolina, particularly with North 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 b e 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 thi s year documenting how a lack of federal controls and weak state regulations 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 risk. While some processes may render coal 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 the current failed patchwork of state protections against coal ash.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamb le for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the prea mble discusses EPA’s statutory authorities under a subtitle D rule. In particular, the commenter is referred to EPA’s analysis of state programs that can be found in Unit IV of the preamble.



### Comment Number: TRANS

- CHI

- 0003

- 1 

### Organization 1 

### : Citizens for Recycling First801



### Commenter 1 : John Ward Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.1 10.4.3 

### Comment Excerpt Text: Today, I would like to make four key points that address common misconceptions that have been frequently stated at these series of public hearings. Number one: Coal ash does not qualify as a hazardous waste based on its toxicity. This is not an option. It is a fact that standardized tests show that the levels of metals in coal ash are below the amounts established for listing it as a hazardous waste. In recycling settings, the toxicity of coal ash is similar to the toxicity of the materials it commonly replaces. Number two: EPA's proposed Subtitle D and Subtitle C regulatory approaches are both protective of human health and the environment. The landfill construction standards proposed are essentially the same in both, and so EPA's Subtitle C proposal is not "stronger." The key
differences between t he proposals boil down to who gets to enforce the new regulations that EPA establishes, new regulations that are far from "business as usual" in either option. Number three: Stigma is real. Labeling coal ash as hazardous waste when it is disposed creates enormous barriers to recycling. Producers, marketers and users of coal ash have been unanimous in expressing this fact during the public hearings. The only people claiming the stigma is not real are people with no direct involvement in the recycling effort

. And number four: Stigma is already taking a toll on recycling just as a result of this debate. Specifiers and users of coal ash are already beginning to remove the material from projects because of regulatory uncertainty and fear of future liabilities. Manufacturers of products that compete with coal ash are actively using this forum to make false claims about dangers of using coal ash. And we have seen numerous witnesses at these very hearings express fear regarding long established beneficial uses of c oal ash, proving the point that the drumbeat of the terms "toxic" and "hazardous" dramatically affects consumer behavior. The people who work everyday to recycle coal ash are extremely disheartened by this debate. Many of them have devoted entire careers to do something good for the environment. They now feel betrayed by the Environmental Protection Agency and by environmental groups who appear resolved to ignore and sacrifice the benefits of recycling in their single

- minded push for federal
enforcement au thority. New coal ash disposal regulations under Subtitle D will make meaningful improvements to disposal practices and do it faster than Subtitle C can. Subtitle D will protect human health and the environment, and will avoid the creation of an unnecessa ry and harmful hazardous waste stigma that will wreck efforts to safely and responsibly recycle millions of tons of material that otherwise will find its way to landfills. Subtitle D is the right choice for the environment.

Response: The Agency acknowled ges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating t o the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.
Response: The commenter is referred to Unit IV of t he preamble for a discussion o f EPA’s802

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: TRANS

- CHI

- 0043

- 2 

### Organization 1 

### : Commenter 1 : Aaron Turkewitz Commenter Type: Private Citizen
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.1 4.2.1 

### Comment Excerpt Text: Given this reality, it is clear to me that the EPA should and must adopt the stro ngest possible regulations to contain the toxins in coal ash. To begin with, coal ash should be regulated from cradle to grave. Many of the conditions in Subtitle D are inappropriate for dealing with hazardous waste. Both logic and history argue that it is unrealistic to expect an industry to police
itself. Similarly, private citizen driven lawsuits, to expect private citizen driven lawsuits to be an effective counterbalance to industry power is unrealistic. While David and Goliath may be an appealing stor y, it's not a good model for ensuring the changes that are required to safeguard human and environmental health. For this reason, the regulations and the enforcement must
come from the federal level. The current patchwork of state regulations are weak. Ma ny states fail to require even basic safeguards such as adequate monitoring. State

- based regulations and enforcement are also inappropriate because unless rules are changed, coal ash and coal ash polluted groundwater don't actually respect state boundaries

. I want the environment in which I and my neighbors live to be cleaner and healthier. I want the environment that children inherit to be cleaner still. The EPA is the right agency to take the lead and I hope it will adopt provisions at least as strong an d binding as those in Subtitle D with regard to coal ash.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and en forced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Commen t Number: TRANS

- CHI

- 0064

- 3 

### Organization 1 

### : Peoria Families Against Toxic Waste 

### Commenter 1 : Tracy Fox Commenter Type: Advocacy Group803

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.2.4 

### Comment Excerpt Text: The second reason why I think C is so important is because it includes enforceable corrective action, and I think that's a key difference. As someone who has looked at the numerous reports showing water quality violations, well incursions and other monitoring problems, and to realize that Subtitle D includes no enforceable corrective action, all the self

- imposed monitoring and reporting in the world is worthless without that. Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: TRANS

- CHI

- 0078

- 1 

### Organization 1 

### : Michigan Citizen Action 

### Commenter 1 : Adam Knott Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.1 

### Comment Excerpt Text: We strongly support Subtitle C because of the state and federal enforcement that would be part of the rule, because pri vate citizens cannot bring a suit on their own, through their own resources. The industry has the unlimited checkbook and can outlast any citizen group. Plus, there is no guarantee that the state, even though it can be acting as a citizen, will necessarily bring corrective action or bring enforcement to the industry. And also, we support the state and the federal government's corrective actions under the Subtitle because the industry, as much as they have the good intentions of fixing their mistakes and se lf regulating, don't always do that. I can tell you as someone who lives 30 minutes from Marshall, Michigan where 800,000 gallons of oil were leaked into the Kalamazoo River where I get my water from, that company had 350 areas of concern and did not addre ss them at all. So, we strongly need both the state and the federal government in there to enforce any corrective action
that is needed. And lastly, Subtitle C will create uniformity throughout the country, from cradle to grave of coal ash and its regulat ion. And if everyone knows the rules, everyone can act accordingly and, you know, those that use, whether it's cement makers or the coal industry, if they know what the rules are, they can act accordingly and offer the best service and the best product and the landfills will not dry up overnight. Every time a rule such as this is proposed, they always say that they'll go out of business. Well, we hear that from the regulation of industries that have abused their positions regularly. If it's not the coal ind ustry, it's the insurance industry, and not one of them has gone out of business yet. So, we strongly support Subtitle C.804

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: TRANS

- CHI

- 0110

- 1 

### Organization 1 

### : Commenter 1 : Susan Michetti Commenter Type: Private Citizen
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.1 

### Comment Excerpt Text: Coal ash needs classification as a listed toxic substance to be regulated under RCRA Subtitle C with a comprehensive program with federally enforceable requirements as a minimum, not through citizen suits that require deep pockets and will bring bankruptcy to those citizens. The coal industry outrageously brags they meet the standards whil e contaminating the drinking water in Wisconsin, so Caledonia has to have bottled water. Since voluntary industry self

regulation is beyond failed, industry corporations must be held financially accountable for all external cost including testing and clean up, not paid by individual victims of these unfair, unethical externalities of their costs of doing business.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s sta tutory authorities under a subtitle D rule.



### Comment Number: TRANS

- CLT

- 0004

- 1 

### Organization 1 

### : Sierra Club Beyond Coal Campaign 

### Commenter 1 : Marianne Hitt Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.1 

### Comment Excerpt Text: The first point: coal ash should be classified under Subtitle C of RCRA, not D, because one, it is indeed toxic. Why else would TVA be spending $1 billion in buying up all the lan d around the Kingston spill if it was not? We know it causes developmental problems in children, and cancer and other ailments caused by all those heavy metals.805

And secondly, the key here is that Subtitle C is federally enforceable and Subtitle D is not. Subtitle D is only enforceable by states and citizen suits. And we know that state enforcement has been spotty at best. That's what got us into this situation in the first place. And I think we can all agree that it's unfair and I would say unreasonable to expect citizens to bear the burden of enforcing rules when the polluters they are encountering are well

- resourced, well

- financed, and these are complex, lengthy, technical, legal proceedings. So putting the burden of enforcement on states and on citizens is not getting the job done when you've got hundreds of these sites all across the country.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtit le D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authoriti es under a subtitle D rule.



### Comment Number: TRANS

- CLT

- 0031

- 2 

### Organization 1 

### : Sphere One, Inc. 

### Commenter 1 : Ryan Brownhill Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.1 

### Comment Excerpt Text: We in the recycling CCP industry support strong relation (sic) of CCRs under Subtitle D with Federal enforcement authority. The EPA can't be afraid to lead. With our economy sputtering, you would think the EPA c ould work with Congress, get direct enforcement authority, and proceed to regulate CCRs under Subtitle D without creating this damaging stigma for CCPs. If there is even some question about how Subtitle C classification will be detrimental to business,
wh y do it, especially when there is a technically sufficient solution that carries virtually no risk to the beneficial use of CCPs? A Subtitle D classification allows the EPA to live up to its responsibilities to protect the environment as well as its respon sibility to all the hard working Americans whose livelihood depends on the reuse of CCPs.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule. Response: The commenter is referred to Unit IV of t he preamble for a discussion o f EPA’s 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.806



### 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: 7.1 

### 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 troubling for me to find out how ubiquitous coal ash is used in North Carolina, i n 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 pract ices 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 feel ing 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 Agency acknowledges and appreciates the comment, the commenter is
referred to U nits V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In ad dition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: TRANS

- CLT

- 0139

- 1 

### Organization 1 

### : Concerned Citizens of Giles County, Virginia 

### Commenter 1 : Darlene Cunningham Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.1807



### Comment Excerpt Text: I live in Giles County, a Southwestern county in Virginia where a division of American Electric Power and a 501(c)(3) p ublic school foundation have teamed to construct an unlined fly ash dump right on the edge of the New River. Citizens of my county have been denied a right to a public hearing to oppose this. Actually, my state DEQ allows such action calling it "beneficial use." That's right. Pouring tons of toxic ash in an unlined site right by the river and calling it "fill" is okay in my state. Such is the regulation in Virginia. The notion that states and utilities are effectively regulating coal waste is grossly erron eous and is being circulated by those who stand to profit if the status quo is maintained as described in Subtitle D. These hearings would not be necessary if states and industry were generally concerned about protection of our water and if they were dispo sing of their waste responsibly. The fact is there must be effective, enforceable Federal regulation for coal waste if public health is to be valued over corporate profits. Subtitle C is the only rational choice.

Response: The Agency acknowledges and appr eciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decisi on to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.
Response: The commenter is referred to Unit IV of t he preamble for a discussion o f EPA’s decision to regulat e 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: TRANS

- DAL

- 0027

- 1 

### Organization 1 

### : Ozark Headwaters Group of Sierra Club and Arkansans Against Ash Dumping 

### Commenter 1 : David Orr Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.1 

### Comment Excerpt Text: I'm the chair of the Ozark Headwaters Group of Sierra Club in Arkansas. And I am also founder of Arkansans Against Ash Dumping. We appreciate the opportunity today to support the proposed Subtitle C rule that would regulate coal fly ash as a hazardous waste material. In our state, the

-- the regulatory framework is considered by many to be one of the weakest in the United States. Our Department of Environmental Quality has little authority to take enforcement actions of any significance under the Clean Water Act and other

-- and other environmental laws

. We need help from EPA and from the federal government generally to put additional pressure on our state and on the Arkansas Department of Environmental Quality to take its responsibilities under federal environmental law more seriously or else take enfor cement over from ADEQ and the other agencies that are failing in their responsibilities. And while we have concerns with failure to enforce existing laws, we are here today to bring to your attention a growing threat to groundwater and aquifers in our sta te, and to our streams and soils, as well. The unregulated dumping of coal ash is polluting our state, especially now in areas808

where drilling for natural gas is occurring. We have the Fayetteville shale formation where hydraulic fracking techniques are use d that cause extensive damage to aquifers, streams, and
soils. This fracking technology uses massive amounts of clean water from groundwater supplies and surface water supplies in fracturing underground gas

- bearing rock. Water is mixed with toxic
drill mu ds, organic chemicals including benzene and toluene and other heavy metals. These pollutants are either left in place or pumped out of the drill holes and dumped in open pits or pumped down other holes and ponds, such as is done in Bokoshe, Oklahoma, just across our western border near Fort Smith. We are now informed that fly ash is being pumped into abandoned drill holes where it may be leaching into adjacent groundwater supplies. Because there is no regulation of ash today, we
have no idea how much ash i s being dumped into wells, nor do we know how much leachate has migrated or will migrate into aquifers. We have learned that Oklahoma ash is being hauled into Arkansas for dumping and vice versa. Clearly, there is now an interstate commerce in fly ash.
We must have federal intervention and regulation to control the proliferation of these shipments.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.
Response: The commenter is referred to Unit IV of t he preamble for a discussion o f EPA’s 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: TRANS

- DAL

- 0063

- 1 

### Organization 1 

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

### Comment Excerpt Text: I would like for the EPA to recognize the public health and environmental h azards caused by coal ash and the impact on the communities in Oklahoma. And ask you to regulate it under federal guidelines Subtitle C of the RCRA. This is the only option that establishes federally enforceable standards needed for oversight and protectio n of the citizens and

-- and the water. In Oklahoma, state regulation and enforcement are notoriously weak or nonexistent. The Oklahoma Department of Environmental Quality, the Water Resources Board, and the Oklahoma Department of Mines each insist that t he other is responsible for regulation. And to regulate under Subtitle C would be following EPA's own guidelines.809

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule. Response: The commenter is referred to Unit IV of t he preamble for a discussion o f EPA’s 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: TRANS

- DEN

- 0003

- 2 

### Organization 1 

### : Citizens for Recycling First 

### Comm enter 1 : John Ward Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.1 

### Comment Excerpt Text: It is a fact that coal ash does not qualify as hazardous waste based on its toxicity, which is similar to the toxicity of other building materials that it replaces when it's recycled. It is also a fact the landfill engineering standards EPA is proposing a re essentially the same under both the Subtitle C hazardous and Subtitle D nonhazardous regulatory options. Designating coal ash as hazardous when destined for disposal does not result in a greater level of protection for the environment. It does give the federal EPA a clearer path to enforcing its new engineering standards rather than delegating enforcement of EPA standards to the states. But getting that enforcement authority comes at a terrible price, the possible destruction of a recycling industry tha t greatly benefits our environment. Common sense says that risking an entire recycling industry over a regulatory turf battle is a bad idea, and common sense says that new coal ash disposal regulations should be enacted under Subtitle D, and EPA should wo rk to promote safe and environmentally beneficial recycling as a preferred alternative to disposal.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory au thorities under a subtitle D rule.



### Comment Number: TRANS

- DEN

- 0061

- 3 

### Organization 1 

### : Rocker Six Cattle Company 

### Commenter 1 : Clint McRae Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:810

Other Sections: 3.1.1 

### Comment Excerpt Text: The State of Montana, Department of Environmental Quality, the only thing they have done is produced a two

- page flowchart, which I will include with my comments today. This toxic and poison water, as I said, is a herd health issue, and the State of Montana has done nothing to enforce the law. Subtitle D, if chosen, will also do nothing and will continue the process as is. PP&L has done very little to stop the leak, and I think it's time that they become a good neighbor and work to protect us in the cow business. It's time for federal oversight. Please designate wet ash pond effluent what it is. It's hazardous. And at the minimum, please pick sub

- standard

-- C

-- the C option

Response: The Agency acknowledges a nd appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.
Response: The commenter is referred to Unit IV of t he preamble for a discussion o f EPA’s 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: TRANS

- KNX

- 0002

- 1 

### Organization 1 

### : Southern Alliance for Clean Energy 

### Commenter 1 : Steven Smith Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.1 

### Comment Excerpt Text: I was asked to come up and speak before the Environmental Public Works Committee the first week of January. Talking to that committee, we

-- and the chairman, Chairman Barbara Boxer, she basically said, "Look, Lisa Jackson is going to be up. We're going to talk to her during her confirmation hearing." And sure e nough, two weeks later she was up there, made a commitment to actually do something about coal ash once and for all. And it's been long in coming, because we came very close to regulating coal ash back in the late 1990s. And O & B, at that time, held it

up . O & B this time has delayed the proceedings now for over six months as they've wrangled with and been lobbied by those who have a financial interest and are willing to put that financial interest above and beyond the health and

-- and safety of citizens. So what we did was, now that the new ash rules are out, we've actually written a report where we've taken a look at what the state of Tennessee, which has basically been ground zero for coal ash. And what we did was we saw, what are they doing in the reg ulations. I want to submit this as part of the record. But the bottom line is that under Subtitle D, you defer tremendously to the811

states. And what we're seeing is the states aren't stepping up. EPA has a role, has a responsibility to be a backstop. And t hat's why we are strongly in support of Subtitle C, because we need that backstop, we need that agency to make sure that the rules are enforced. And if they're not enforced, then what

-- what we see is we see these kind of
devastation that we saw in Oak Ri dge

-- I mean, in Harriman. So we'll submit this as part of the record. My colleague Josh Galperin is going to get into the specifics on the report, but I'm here to strongly encourage that Subtitle C be the course. That is the only way that we can protect public health and the environment. That's the only way that we can assure that the kind of accidents that happened in Harriman will not happen again.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.
Response: The commenter is referred to Unit IV of t he preamble for a discus sion o f EPA’s 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: TRANS

- KNX

- 0042

- 3 

### Organization 1 

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



### Comment Excerpt Text: The state of Tennessee has no effective regulations in place to protect our communities from the dang er of coal ash. And the evidence is seen in the Kingston coal ash disaster. It's documented that Tennessee has no laws designed specifically to address the dangers of coal ash. Because of this lack of state regulation, obviously, Subtitle D is not acceptab le. Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: TRANS

- KNX

- 0068

- 1 

### Organization 1 

### : Commenter 1 : L inda Smithyman Commenter Type: Private Citizen
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:812

Other Sections: 3.1.1 

### Comment Excerpt Text: Several Kentucky utilities, LG& E's ponds, fall into this category. I used to live in Kentucky for a
little while. These ash

- disposal sites also leak their toxic cargo into ground water 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 standards for the safe disposal of ash or limiting the discharge of toxic ash, leachate, into our waterways. We need comprehensive federally

enforceable safeguards to protect human health, wildlife, and the environment. Coal ash must be regulated under Subtitle C of the Resource Conservation and Recovery Act as special waste with all the safeguards that apply. Coal ash should not be regulated under the much
weaker

-- MR. SOUDERS: Sorry.
MS. SMITHY MAN: Okay. MS. DEVLIN: Okay. Thank you very much.
MS. SMITHYMAN:

-- and less protective standards provided by a Subtitle D designation, as
nonhazardous waste. Regulating coal ash under Subtitle D or RCRA is a busted and broken approach that essentially keeps the status quo of voluntary and patchwork protections. Subtitle D guidelines cannot guarantee all citizens adequate protections from toxic ash because Subtitle D does not require states to adopt federal guidelines. There are currently no federally

- e nforceable regulations specific to coal ash, and contamination from coal ash landfills and wasteponds is already poisoning drinking water supplies and damaging wildlife. such as fish and birds, at locations across the country. The last of federally

enforce able safeguards is exactly what led to the disaster in Tennessee, which a dam holding more than 1 billion gallons of toxic coal ash failed, destroying 300 acres, dozens of homes, killed fish and other wildlife, and poisoned the Emory and Clinch Rivers.

Re sponse: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preambl e for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### 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 7.1 

### Comment Excerpt Text: Unless the EPA adopts the above

- mentioned option, our nation's citizens and our environment will continue to remain vulnerable to the toxicity of coal ash. The TVA ash spill has dramatically and tragically demonstrated the failures of relying on a patchwor k of state regulation. It is imperative that the EPA have direct oversight over the generation of storage, transportation, and the disposal of coal ash in order to safeguard the public and the environment. Subtitle D813

would continue to rely on a state

- by

- s tate patchwork of regulations, which time and time again has proven to be inadequate. Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rul e will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### 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: 7.1 

### 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 Kentucky 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. Respons e: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: TRANS

- LVL

- 0094

- 2 

### Organization 1 

### : Environmental Integrity Project 

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



### Comment Excerpt Text: Voluntary Subtitle D means residents near coal ash disposal sites will have no guarantee that they will even have access to coal ash toxicity information that can prevent contamination, illness, birth defects, to go along with the fact that they don't even have reliable, accurate tests being conducted right now.
Numerous letters hav e been sent to the EPA by state agencies, legislators, and so forth. Indiana814

Department of Environmental Management says none of their many years of

-- of

-- of

-- years to date has indicated that the characteristics of CCBs approaches the limits for toxic ity in the federal regulations to identify havard

-- hazardous waste. Of course not. The test is inaccurate. The DNR says that

-- and I

-- I quote

-- "Indiana statute provides for the use of CCBs in
beneficial

- use applications in the state of Indiana so lo ng as the material is used for specific purposes and is not hazardous waste." Well, in reality, if you take a look at Indiana statute, the Indiana Solid Waste Management Board is prohibited from even regulating coal ash.
And so we need Subtitle D. Subtitl e

-- or Subtitle C. Excuse me. We need Subtitle C because after three years of self

- policing under Subtitle D, state regulators and the utilities have proven

Response: The Agency acknowledges and appreciates the comment, the commenter is
referred to Unit s V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addit ion, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### 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: 4.2.1 7.1 

### 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 C 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. Ai r 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 sla shed to the bone. Our communities are facing serious environmental 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 i s necessary to regulate coal ash. Clean Water Action supports strong federal regulations on coal
ash. Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how thi s subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory a uthorities under a subtitle D rule.815

Section 4.2.5

- Potential use under Subtitle D approach of “imminent and substantial endangerment” authorities under RCRA, CERCLA, CWA or other federal authorities (35211) Total Number of Submissions: 27 Total Number of Comments: 29



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 02867

- 2 

### Organization 1 

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



### Comment Excerpt Text:

In considering the quality of groundwater and surface water in relation to RCRA, the EPA should be careful that they don’t create overlapping and potentially confusing regulation. The Safe Drinking Water Act (SDWA) and Clean Water Act (CWA), respectively, are supposed to ensure the quality of our nation’s drinking and surface water. If there indeed have been damage cases from the contamination of water sources, it would seem at least in part to be the result of government failure to enforce existing regulation s. Since such rules are already in place, to regulate CCRs under subtitle D or subtitle C of RCRA to ensure clean water could be redundant. Moreover, if relevant parties are not complying with the current regulations, SDWA and CWA, why will they comply wit h new ones? Instead of complying, industry users will likely become more confused with the increasingly complex web of regulation and attempt to avoid products or constituents that are subject to it even if those products or constituents would otherwise be preferable. Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06295

- 6 

### Organi zation 1 

### : Portland General Electric Company (PGE) 

### Commenter 1 : James J. Piro Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

Concerns raised about the l ack of direct federal enforcement authority fail to recognize the significant enforcement opportunities available under existing law. EPA acknowledges that the final Subtitle D rules for CCRs would be directly enforceable by the states and the public under816

RCRA's citizen suit provision and violators would be subject to significant penalties. [FN 7: 75 Federal Register 35128 at 35211.] EPA would also retain its "imminent and substantial endangerment authority" under RCRA to take action against any CCR unit t hat posed a risk to human health and the environment. Finally, EPA could use its imminent and substantial endangerment authorities under CERCLA, as well as other federal authorities, including the Clean Water Act, to address circumstances where a CCR unit posed a threat. Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06422

- 28 

### Organization 1 

### : Dynegy Inc 

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



### Comment Excerpt Text: Under RCRA § 7003, EPA also can directly enforc e Subtitle D requirements whenever a CCR facility may present an imminent and substantial endangerment to health or the environment. Finally, EPA has additional independent enforcement authority under the federal Clean Water Act and CERCLA, as does the Off ice of Surface Mining under the federal Surface Mining Reclamation and Enforcement Act, to address CCR facilities that may threaten health or the
environment. Response: The Agency acknowledges and appreciates the comment, the commenter is
referred to Unit s V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addit ion, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06533

- 3 

### Organization 1 

### : Empire District Electric Company 

### Commenter 1 : George G. Thullesen Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Any federal regulations should establish minimum requirements to be applied to facilities in states where no approv able state regulatory program exists. In contrast, states should be817

permitted to demonstrate that their regulatory programs are adequately protective. We remind EPA that they already have RCRA 7003 enforcement authority to address potential threats or
enda ngerment to human health and the environment for the release of solid waste. Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitl e D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06723

- 9 

### 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: 4.2.4 

### Comment Excerpt Text: Furthermore, as referenced in Sections X.B and XII of the proposed regulations, the EPA already has broad RCRA 7003 enforcement authority to address Potent ial 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 afforded by Subtitle C. Response: The Agency acknowledges and appre ciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decisio n to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06857

- 33 

### Organization 1 

### : CertainTeed Gypsum, Inc. 

### Commenter 1 : Lauren P. Alterman Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Insofar as EPA is worried about establishing appropriate standards to forestall future impoundment p roblems, the Agency can do so as proposed in Option 2. While EPA may be unable to pursue noncompliance with these standards as a federal regulatory violation, it surely can use its imminent and endangerment authority to address any resulting risk. In fact, in its CCR Regulatory Determination in 2000, EPA announced its intention to issue minimum national performance standards. Perhaps if EPA had acted on its promise and previously availed itself of818

the authority it does possess to establish national standard s, the Agency would now not find a need to address landfill problems. Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be impleme nted and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rul e.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06872

- 21 

### 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: 3.2.3 4.2.2 

### Comment Excerpt Text: According to EPA, the design and performance standards for the proposed regulations will likely be the same regardless of what regulatory scheme is selected. The major diffe rence in the approaches is that EPA asserts that a Subtitle C designation is necessary for it to retain and exercise appropriate enforcement authority and EPA cannot require States to permit landfills under Subtitle D. The PA DEP recognizes that regulatory oversight is important to ensure that CCR is managed appropriately; however, PA's Solid Waste Management Act already authorizes state enforcement authority, and PA DEP exercises that authority. Subtitle D requires state programs to have the necessary enfo rcement authority as part of the federal approval process. This approach has been successful for PA, as evidenced by the 96% compliance rate for CCR facilities. In addition, EPA already has broad RCRA 7003 enforcement authority to address
"Potential Substa ntial Threats or Endangerments to Human Health and the Environment" as well as imminent hazards for releases of solid waste and, therefore, it does not require the additional authority under Subtitle C. Response: The Agency acknowledges and appreciates th e comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regu late CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06921

- 29 

### 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:819



### Comment Excerpt Text: In addition, EPA has options for enforcement even if the waste is determined non

- haza rdous and regulated under subtitle D. “EPA can however take action under section 7003 of RCRA to abate conditions that ‘may present an imminent and substantial endangerment to health or the
environment.’ EPA could also use the imminent and substantial enda ngerment authorities under CERCLA, or under other federal authorities, such as the Clean Water Act, to address those circumstances where a unit may pose a threat.” (75 FR 35211) Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07048

- 3 

### Organization 1 

### : TransAlta Centralia Generation 

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



### Comment Excerpt Text: One of EPA's major concerns with the Subtitle D option is that it lacks authority to require state permits, approve state programs and to directly enforce the criteria (75 Fed. Reg. at 35194). However, RCRA § 7003 grants EPA ample direct enforcement authority to address health or environmental risk from CCRs at power plants, landfills and surface impoundments. Although EPA has not used this authority extensively since the adoption of Section 106 of CERCLA, Section 7003 authorizes EPA to issue unilateral orders, file lawsuits for injunctive relief, and enter into administrative orders on consent to respond to "imminent a nd substantial endangerment" to health or the environment resulting from solid wastes. See EPA, "Guidance on the Use of Section 7003 of RCRA" (Oct. 1997). Also, EPA has authority to impose civil penalties for violations of Section 7003 orders.

Section 70 03 has been broadly interpreted to apply to threatened or potential harm to health or the environment. See. e.g., United States v. Valentine, 856 F. Supp. 621,626 (D. Wyo. 1994). No present or actual harm is required, only a risk of harm. No release or pro of of off

- site migration is required ; even wastes in place are subject to Section 7003 authority if they present an imminent and substantial endangerment. ld. Finally, "imminent" does not require an emergency,
Section 7003 allows enforcement action even f or future risks. ld.

Section 7003 provides EPA with the type of enforcement authority consistent with its actual enforcement practices under other environmental programs in which it has direct enforcement authority. Under other programs, such as Clean Wa ter Act and Clean Air Act, EPA's policy and practice is to intervene directly by bringing an enforcement action only in cases involving significant violations in which a state has failed to take action. To the extent that states are820

unwilling to adopt and enforce EPA's Subtitle D standards for CCRs, the EPA may use its Section 7003 authority for enforcement of Subtitle D requirements in a manner similar to its oversight enforcement of other state environmental programs.

Response: The Agency acknowledges an d appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07489

- 5 

### Organization 1 

### : Council of Industrial Boiler Owners (CIBO) 

### Commenter 1 : Robert D. Bessette Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.4 

### Comment Excerpt Text:

EPA mischaracterizes the differences between the Subt itle C and D programs, contending without support that the Subtitle D program lacks enforceability. EPA is pursuing a Subtitle C regulation based on a misperception that EPA needs enhanced enforcement options because the states lack such authority. At the same time, EPA and other federal agencies, continue to delegate programs and enforcement to the states; and as discussed previously, with some additional support from EPA, states can develop and implement well

functioning enforcement programs.
Even under a state run Subtitle D program, EPA has enforcement authorities that allow it to enforce Subtitle D requirements. If a site does not comply with Subtitle D Standards, the site could be classified as an “open dump” and subject to enforcement action, even by EPA. Even for authorized state programs, EPA always retains the ability to enforce to prevent an “imminent and substantial endangerment” of public health or the environment. [Footnote 6: 75 FR 35211]

States can perform effectively; the present state of C CB regulation is not an example of a failed Subtitle D program, rather it is a Subtitle D program never launched. Subtitle D is a highly effective regulatory mechanism, as evidenced by states' implementation of the Subtitle D program for managing solid wa ste. In the case of CCBs, states have been required to develop their own programs for managing CCBs. In some states, these programs are limited by state laws that limit the state’s development and implementation of a program where EPA has not developed a r egulatory approach. The real failure for enforcement lies with EPA. Had EPA promulgated regulations under Subtitle D and had the states not implemented the regulations, then perhaps a case of state regulatory failure could be made. Here, however, in the ab sence of EPA involvement, the states have developed regulations for the management of CCBs from all
combustion sources821

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussio ns as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses E PA’s statutory authorities under a subtitle D rule.

Response: The commenter is referred to Unit IV of t he preamble for a discussion o f EPA’s 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

- 08211

- 21 

### Organization 1 

### : North Dakota Depart ment of Health 

### Commenter 1 : L. David Glatt Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.2.3 4.2.1 

### Comment Excerpt Text: The NDDoH believes that the whole crux of the selection of the Subtitle C or D options comes down to enforcement. Will direct enforcement authority by EPA be absolutely necessary, or will enforcement by states and citizens be adequately protective? The maj ority of states have applicable solid waste regulations that can be enforced by the state.

In the states that do not have regulations regarding CCRs, the imminent hazard enforcement authority currently included in RCRA provides EPA with a mechanism for e nforcement short of creating a new set of regulations for CCRs under Subtitle C. An EPA enforcement training document, found online at www.epa. gov/osw/inforesources/pubs/hotline/training/enforc.pdf, states the following:

"Section 7003 gives EPA a broad and powerful enforcement tool to use in abating imminent hazards caused by hazardous or solid wastes. RCRA §7003 states that upon receipt of evidence that the past or present handling, storage, treatment, transportation, or disposal of any solid waste
or h azardous waste may present imminent and substantial endangerment to human health or the environment, EPA may bring suit against any person who has contributed or who is contributing to the handling of the waste to restrain the person, order the person to t ake any action that may be necessary, or both. The action taken by EPA may be administrative or civil. To issue a §7003 order, EPA must possess evidence that the waste handling may present an imminent and substantial endangerment to human health or the env ironment. Evidence may be documentary, testimonial, or physical and may be obtained from a variety of sources, including inspections, investigations, or requests for production of documents or other data pursuant to §§3007, 3013, or the Comprehensive Envir onmental Response, Compensation, and Liability Act (CERCLA) §104. This evidence must be reliable enough to enable a reasonable person to conclude that the action is appropriate. The phrase "may present" indicates that the standard of proof does not require certainty. That is, an order may be issued if there is sound reason to believe that an endangerment exists; evidence of actual harm is not required."822

Therefore, by EPA's own assessment and interpretation of current RCRA rules, it is not necessary to imp lement the Subtitle C option for EPA to have direct enforcement authority for CCR damage cases.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subti tle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorit ies under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08244

- 31 

### Organization 1 

### : Edison Mission Energy, LLC 

### Commenter 1 : Basil G. Constantelos Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: G. EPA's Existing Enforcement Authority Under RCRA § 7003 And CERCLA § 104 Already Gives It The Authority It Needs To Take Action To Remedy Each Of The Damage Cases (And Potential Damage Cases) Cited B y EPA As A Justification For Its Subtitle C Proposal One of EPA's main justifications for moving forward with a Subtitle C approach is that it lacks the tools necessary to address and/or mitigate the risks posed by CCRs and existing CCR management systems. [Footnote 286: 75 Fed. Reg. at 35,221.] In support of this claim EPA points to several "damage cases." However, EPA acknowledges that its existing authority under RCRA § 7003 already gives it the authority it needs to address any risks to human health and the environment associated with the disposal of CCRS. [Footnote 287: 58 Fed. Reg. at 42,476 ("Considering industry's trend toward more protective waste management practices, the fact that State regulatory programs are generally adequate, and because Feder al authorities exist that can address these wastes, EPA has concluded that current management practices and regulatory controls are adequate.").] RCRA § 7003 permits EPA, ''upon receipt of evidence that the past or present handling, storage,
treatment, tra nsportation or disposal of any solid waste or hazardous waste may present an imminent and substantial endangerment to health or the environment," to take such actions, including judicial actions, "as may be necessary to protect public health and the enviro nment.” [Footnote 288: 42 U.S.C. § 6973.] Section 7003 permits EPA to seek relief from the courts, to issue administrative orders, and to impose controls on future operations at any facility or site, regardless of whether the facility or site is one permit ted under RCRA. [Footnote 289: U.S. EPA Office of Enforcement and Compliance Assurance, Guidance on the Use of Section 7003 of RCRA, at 21 (October 1997).] EPA concedes in the Proposed Rule that this authority exists, observing that § 7003 “can be used at sites and facilities that are not subject to Subtitle C of RCRA or any other environmental regulation.” [Footnote 290: Id. at 2.] In fact, EPA guidance directs its regional administrators to utilize the Agency’s RCRA § 7003 authority to act where823

existing solid or hazardous waste authorities prove inadequate or inapplicable

— for instance, because they do not allow EPA to address a material present at a site or facility

— or where they cannot be used to address a potential endangerment in a timely manner. [Foot note 291: Id. at 4.] This guidance evidences a recognition by EPA of its broad authority under RCRA § 7003 to address circumstances not expressly covered by existing regulations. Courts have affirmed the breadth of EPA’s authority by reading the “notwithst anding any other provision of this chapter” language of RCRA § 7003 to indicate Congress’ intent to create a “broadly applicable section dealing with the concerns addressed by the statute as a whole.” [Footnote 292: United States v. Waste Industries, Inc., 734 F.2d 159, 164 (4th Cir. 1984).] These courts (and EPA itself) have taken this judicial interpretation to mean that RCRA § 7003 can be used “to address potential endangerments that may be presented by solid or hazardous wastes even if the persons or ac tivities causing the potential endangerment are not subject to any other provision of RCRA or other environmental law.” [Footnote 293: Id.; see also U.S. EPA, Guidance on the Use of Section 7003 of RCRA at 3.] This interpretation illustrates the point that RCRA § 7003 is a powerful regulatory tool available to EPA to mitigate the risks posed by CCR management systems, such as a structurally unsound surface impoundment. Moreover, contrary to EPA’s claim, its authority under RCRA § 7003 to address “an imminen t and substantial endangerment to human health or the environment” is not limited in scope. Courts have found the “imminent and substantial” standard met relatively early in the risk characterization process. For example, a risk need not be quantified to b e “substantial,” and a threat of damage to the environment alone will suffice to trigger RCRA § 7003. [Footnote 294: United States v. Conservation Chemical Co., 619 F. Supp. 162, 194 (W.D. Mo. 1985).] In one instance, a federal district court in Florida fo und the imminent and substantial endangerment standard “unquestionably” met when groundwater contamination was discovered beneath a shopping center that housed a dry

- cleaning facility, even though no contamination was detected in the nearest potable water supply approximately one mile away. [Footnote 295: Fairway Shoppes Joint Venture v. Dryclean U.S.A. of Florida, No. 95

- 8521

- CIV

- HURLEY, 1996 WL 924705 (S.D. Fla. March 7, 1996).] Even though there was no evidence that any chemical had moved beyond the prop erty boundaries of the shopping center, the court found the threat of its “migration” sufficient to trigger enforcement authority. [Footnote 296: Id. at *8 (“The Court
need not

— and should not

— wait until the contaminated water is actually detected in public water supply well before taking action.”).] The district court also pointed out that the environmental contamination beneath the shopping center was sufficient on its own for a finding of imminent and substantial endangerment. [Footnote 297: Id.] As a res ult, the court affirmed EPA’s exercise of its authority under RCRA § 7003 to order the drycleaner to develop a remediation plan to address the contamination and to submit it to the court within a set period of time. [Footnote 298: Id.]

Similarly, the Seco nd Circuit affirmed the judgment of the United States District Court for the District of Vermont that a defendant operated a landfill in violation of RCRA where, even after installing a leachate collection system, at least ten percent of the chemical waste s from the landfill were migrating into the surface and groundwater around the site. [Footnote 299: Dague v. City of Burlington, 935 F.2d 1343, 1356 (2d Cir. 1991).] The court based its judgment on its belief that the landfill presented an imminent and sub stantial endangerment to health and the environment. These precedents demonstrate that EPA already has the authority under RCRA § 7003 to mitigate the risks associated with each of the damage cases cited in the Proposed Rule.824

For example, EPA’s detection o f groundwater contamination within the vicinity of the Battlefield Golf Course would have permitted it to take action under RCRA § 7003, even though the contamination observed had not yet found its way to potable groundwater supplies. EPA’s response to th ese arguments, as outlined in the Proposed Rule, is that using RCRA § 7003 to address threats at specific facilities on a case

- by

- case basis is not consistent with RCRA’s purpose. [Footnote 300: 75 Fed. Reg. at 35,221.] EPA argues that RCRA was designed as a proactive and prophylactic statute rather than a reactive one, and that relying solely on RCRA § 7003 to mitigate the risks associated with the disposal of CCRs would be inconsistent with congressional intent. [Footnote 301: Id.] EPA also suggests that such a strategy would implement the status quo, which it considers unacceptable, and require too great an investment of resources by the Agency to be practicable. [Footnote 302: Id. Specifically, EPA contends that requiring the Agency to make a showing of imminent and substantial endangerment

— as required by RCRA
section 7003

— each time it exercises its enforcement authority would be too labor intensive.] EPA overstates the difficulty it would face in addressing threats to human health or the
environment unde r RCRA § 7003, as well as the extent to which such a strategy would be reactionary. To exercise its authority under RCRA § 7003, EPA must simply demonstrate the existence of conditions that may present an imminent and substantial endangerment to health or the environment. The elements of a prima facie case of liability under RCRA §7003 are: (1) conditions which present or may present an imminent and substantial endangerment; (2) that the endangerment stems from the handling, storage, treatment, transportati on, or disposal of a solid or hazardous waste; and (3) that defendants have contributed to or are contributing to such handling, storage, treatment, transportation, or disposal. [Footnote 303: United States v. Bliss, F. Supp. 1298, 1313 (E.D. Mo. 1987).] C ourts have routinely held that the endangerment standard of RCRA §7003 is broad, [Footnote 304: 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 ne ither certainty nor proof of actual harm to proceed under the section. [Footnote 305: Dague v. City of Burlington, 935 F.2d 1343 (2d Cir. 1991).] Instead, courts have required only evidence of a risk of harm. Similarly, neither a release of a hazardous sub stance nor a threatened release is required, enabling EPA to act even when a threat to human health or the environment remains less immediate. [Footnote 306: United States v. Aceto Agricultural Chemicals Corp., 872 F.2d 1373, 1382 (8th Cir. 1989).] EPA ins incerely overstates the evidentiary burdens it would face in addressing risks under RCRA § 7003, since it has previously stated that “[f]ederal
authorities exist to address site

- specific problems posing threats to human health and the
environment under RCR A Section 7003.” [Footnote 307: 58 Fed. Reg. 42,446, 42,476 (Aug. 9, 1993).] EPA also fails to acknowledge how prophylactic RCRA § 7003 can be. While RCRA § 7003 may be more site

- specific than the broad, sweeping regulations EPA desires under RCRA
Subtitle C or Subtitle D, the fact remains that it is a forward

- looking provision that permits the Agency to anticipate and address risks to human health and the environment well before they rise to the level of actual negative impacts. In fact, RCRA § 7003 is pre cisely the appropriate authority for EPA to invoke to address the site

- specific concerns that are motivating the Proposed Rule. The legislative history confirms Congress’ view that RCRA § 7003 is “a prospective act designed to prevent improper disposal of hazardous wastes in the future,” [Footnote 308: 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 Eckhardt Report”) (emphasis added).] which is w hy Congress did not limit the statute to emergency

- type situations, and courts825

have made it clear that “a finding of ‘imminency’ does not require a showing that actual harm will occur immediately so long as the risk of threatened harm is present.” [Footnot e 309: Environmental Defense Fund v. Environmental Protection Agency, 465 F.2d 528, 535 (D.C. Cir. 1972).] In other words, imminence refers more to the nature of the threat rather than to its timeline for creating specific impacts. The threat EPA fears mos t is that conditions at a particular disposal facility will lead to another catastrophic failure like the one at the TVA impoundment in Kingston, Tennessee. As explained above, the threat posed by TVA

- type failures is not driven by
the nature of the materi als stored in the impoundment but rather by unit

- specific failures of the impoundment dams. The type of site

- specific failure that occurred at the TVA impoundment is precisely the kind of threat RCRA § 7003 was designed to address. Moreover, in addition to the prophylactic authorities under RCRA § 7003, EPA has additional authority under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) to remediate the contamination that does occur. Under CERCLA § 104(a)(1), EPA can perfo rm or require removal or long

- term remedial action. [Footnote 310: Id.] This authority is triggered by the actual or substantial threat of release of a pollutant or contaminant that may present an imminent and substantial danger. [Footnote 311: 42 U.S.C. § 9604(a)(1).] If it performs the removal or remedial action itself, the Agency can seek reimbursement of response costs under CERCLA § 107(a). [Footnote 312: Id. at § 9607(a).] In sum, the existing statutory tools EPA has at its disposal and the site

- speci fic nature of the concerns motivating the Subtitle C proposal call into question the Agency’s motivation for seeking to regulate CCRs as “special wastes” under Subtitle C. Doing so will unnecessarily saddle the power generation sector and state regulatory bodies with regulatory burdens that are not justified by the risks identified by EPA and the existing authorities available under RCRA § 7003, CERCLA § 104 and RCRA Subtitle D. To illustrate why its existing enforcement authorities are sufficient, one need look no further than the Proposed Rule’s preamble, which highlights 80 surface impoundments of potential concern, lumping them in a broad “high failure risk” group that includes any CCR impoundment greater than 40 feet tall and older than 25 years of age. [Footnote 313: U.S. EPA, Regulatory Impact Analysis for EPA’s Proposed RCRA Regulation of Coal Combustion Residues (CCR) Generated by the Electric Utility Industry, at 7 n.2 (April 30, 2010).] Aside from the height or the age of the facility, EPA disclose s no other site

- specific characteristics that contribute to its concerns with respect to these facilities. Nor does it endeavor to put this number in perspective, where EPA identified a universe of 495 operating electric utility plants, 467 of which dispos ed of (rather than beneficially used) CCR either onsite or offsite in 2007. [Footnote 314: Id. at 7.] It is nothing short of outrageous that EPA proposes to expose the electric utility industry and the states to billions of dollars in unnecessary spending so that EPA can avoid conducting the “facility

- specific and resource

- intensive” inquiry required by § 7003 at the mere 80 surface impoundments that EPA projects may be problematic, despite its recognition that the § 7003 authority is adequate to address th ose risks. As such, it is arbitrary for EPA to claim that it lacks the regulatory tools its needs; EPA has the authority it needs without attempting to force CCRs under Subtitle C without justification. A more tailored approach like EPA’s RCRA Subtitle D o r D* alternatives paired with its existing enforcement authorities would achieve a better balance, giving EPA the environmental benefits it seeks without imposing largely unnecessary costs on industry and enormous burdens on the

states826

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08244

- 39 

### Organization 1 

### : Edison Missio n Energy, LLC 

### Commenter 1 : Basil G. Constantelos Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: D. Under The Subtitle D Approach EPA Still Retains Enforcement Authority Under RCRA § 7003 To Address On A Case

- By

- Case Basis CCR Disposal Practices That Present Any Risk to Human Health Or The Environment As explained above, [Footnote 363: See Subsection III.G supra.] EPA would retain the authority under RCRA § 7003 to address imminent and substantial endangerment to human health or the environment related to the handling, storage, treatment and transportation of solid or hazardous wastes at specific sites. This authority is not dependent on the regulatory approach adopted by EPA. Thus, under a Subtitle D approach, while the authority for implementation of a CCR management program will rest primarily with the states, EPA will retain enforcement authority under § 7003 to address
conditions at individual faci lities where the handling, storage or disposal of CCRs pose an imminent and substantial risk to human health or the environment. As explained above, RCRA § 7003 permits EPA to order the remediation of existing conditions and/or to impose controls on
the fu ture operations of a facility or site. Section 7003 represents a viable tool because it does not require a showing that actual harm will occur; it merely requires that a threat of harm exists. [Footnote 364: Environmental Defense Fund v. Environmental Prot ection Agency, 465 F.2d 528, 535 (D.C. Cir. 972).] Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number : EPA

- HQ

- RCRA

- 2009

- 0640

- 09273

- 7 

### Organization 1 

### : Iowa Department of Natural Resources (IDNR) 

### Commenter 1 : Wayne Gieselman Commenter Type: State Government
Classification: Substantive Comment Category:827

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: EPA Has Enforcement Authority Without RCRA C Designation. Regulating a solid waste as hazardous must be based upon a determination that the solid waste has the constituents or possesses the characteristics to warrant this categorization. This determination cannot be justified solely upon the belief that a Subtitle C designation is needed for the federal government to possess enforcement authority. With regard to enforcement, the Agency already has this authority under Section 7003 of RCRA to a ddress situations where handling, storage, treatment, transportation, or disposal of any solid waste or hazardous waste may present an imminent and substantial endangerment to health or the environment. While this authority has been previously
reserved for the most egregious violations, it does provide an enforcement mechanism which the Agency can invoke when industry or states have been unable or unwilling to address identified environmental impacts. Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regula te CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09281

- 14 

### Organization 1 

### : Exelon Power 

### Commenter 1 : Victoria K. Will Commenter Type: E lectric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.1 

### Comment Excerpt Text: 3. The federal enforcement authorities available under Subtitle C do not provide the only mechanism for assuring effective CCR program implementation.

Exelon shares EPA’ s concern that the lack of federal enforcement authority could compromise
Subtitle D enforcement. However, CCR facility operators have a number of other incentives to comply with Subtitle D regulations, including: (i) the possibility of state and thirdparty litigation (for both regulatory compliance and actual damages), especially with ea sily accessible compliance information open to public scrutiny; (ii) requirements of investors, lenders and insurers to comply with environmental requirements; [footnote 2: Investors and lenders typically condition capital investments and loans on environm ental compliance. Refusing to agree to such a conirnitment could result in lack of funding. Similarly, environmental insurance policies invariably exclude damage claims arising from non

- compliances from covered events] and (iii) typical corporate policies in this frequently

- regulated industry sector which call for environmental compliance as a standard operating procedure.

Moreover, EPA is not without any enforcement authority related to environmental damage828

associated with or resulting from CCR disposal. To the contrary, EPA has authority to ameliorate threats of immediate and substantial endangerment to health or the environment arising from the disposal of CCR under RCRA. See 42 U.S.C. § 6973. While this authority does not include the ability to address each and every minor instance of non

- compliance with the regulatory requirements that would be imposed under Subtitle D, it allows the Agency to address significant
instances of non

- compliance that pose imminent and substantial threats to the public or th e environment. Thus, EPA would still have an important role within the Subtitle D framework in protecting the public from waste management and disposal practices that pose a significant
demonstrated health risk.

EPA can also invoke enforcement authority under other relevant statutory programs. EPA can enforce violations of the clean Water Act under 33 U.S.C. § 1319 if CCR are improperly discharged to surface water or otherwise discharged in violation of an NPDES permit condition. As impoundments are frequ ently located near surface waters and often discharge to them pursuant to a state

- issued NPDES permit, the potential for the clean Water Act to serve as an enforcement tool is far from academic. In addition, the Office of Surface Mining Reclamation
and Enf orcement may also be able to initiate an enforcement action if a state fails to take appropriate action if a beneficial use application of CCR in an active or abandoned mine leads to a violation of the Surface Mining control and Reclamation Act. See genera lly 30 U.S.C. § 1271.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred t o Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09284

- 49 

### 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: 3.2.3 

### Comment Excerpt Text: EPA's concerns regarding their oversight ability should be addressed through the authorities of §7003 of RCRA or through other mechanisms including congressional action.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.829



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10495

- 71 

### 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: 3.4.1.4.1 5.6.4 

### Comment Excerpt Text: VIII. [corrected from V. in second half of split submission] EPA SHOULD USE RCRA §7003 TO ADDRESS THE IMMINEN T AND SUBSTANTIAL HAZARD POSED BY OLD AND INADEQUATELY DESIGNED SURFACE IMPOUNDMENTS

The nationwide inventory of currently operating surface impoundments includes a considerable
number of decades

- old impoundments that pose serious risks of collapse and gr oundwater contamination because they were not properly designed and are not properly maintained. The
best

- case scenario under EPA’s current proposal would allow these precarious impoundments to continue operating for seven years after promulgation. [Footno te 394: U.S. EPA, Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities, Proposed Rule, 75 Fed. Reg. 35128, 35178 (Jun. 21, 2010).]. Because even Subtitle C does not provide for rapid closure and remediation of the most dangerous impoundments, EPA should utilize its authority under RCRA §7003 to effect the
closure or clean

- up of the most perilous surface impoundments. [Footnote 395: 42 U.S.C § 6973.].

Section 7003 of RCRA provides broad authority for EPA to issue administrative orders or commence judicial actions where handling of a solid waste creates “an imminent and substantial endangerment to health or the environment...” [Footnote 396: Id,.]. This clause ha s been broadly interpreted to grant enforcement authority when there is an actual, threatened or potential harm, [Footnote 397: United States v. Velentine, 856 F. Supp. 621, 266 (D. Wyo. 1994).] when present conditions indicate a future risk, even if the h arm may not manifest for some time, [Footnote 398: United States v. Velentine, 856 F. Supp. 621, 266 (D. Wyo. 1994).] and when there is a reasonable concern that health of the environment may be seriously harmed. [Footnote 399:
United States v. Conservatio n Chemical, 619 F. Supp 162 (W.D. Mo. 1985); Leister v. Black & Decker, Inc., 117 F.3d 1414 (4th Cir. 1997).].

After the devastating collapse of the Kingston impoundment in 2008, and the growing evidence of groundwater contamination at impoundments across the country, EPA should recognize that unregulated impoundments pose an imminent harm to human health and the environment. [Footnote 400: See, e.g., Environmental Integrity Project and Earthjustice, “Out of Control: Mounting Damages from Coal Ash Waste Si tes”, Feb. 24, 2010; Environmental Integrity Project, Earthjustice and Sierra Club, “In Harm’s Way: Lack Of Federal Coal Ash Regulations Endangers Americans And Their Environment”, Aug. 26, 2010.]. EPA should further act pursuant to section 7003 to safegua rd communities from further groundwater contamination from unlined ponds and from another collapse at a poorly designed and maintained830

impoundment.

A. Surface Impoundment Ratings Indicate A Probability Of “Substantial Endangerment”

To commence action un der section 7003 EPA must find a substantial endangerment. Substantial endangerment arises when there is a reasonable cause for concern that human health or the environment may be seriously harmed. [Footnote 401: United States v. Conservation Chemical,
619 F. Supp 162 (W.D. Mo. 1985); Leister v. Black & Decker, Inc., 117 F.3d 1414 (4th Cir. 1997).]. EPA has compiled hazard ratings for 200 of the 629 known surface impoundments throughout the country. [Footnote 402: EPA, Information Request Responses from Ele ctric Utilities, available at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm.]. While these hazard ratings do not address potential for harm, the ratings do directly account for the substantiality of the harm. A high hazard ratin g represents a probable loss of human life should the impoundment fail. [Footnote 403: U.S. EPA, Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities, Propo sed Rule, 75 Fed. Reg. 35128, 35130 (Jun. 21, 2010).]. A significant hazard rating represents a possibility of environmental damage. [Footnote 404: U.S. EPA, Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposa l of Coal Combustion Residuals from Electric Utilities, Proposed Rule, 75 Fed. Reg. 35128, 35130 (Jun. 21, 2010).]. Thus, all impoundments with high and significant hazard potential should be considered as posing a substantial degree of endangerment for pu rposes of action under §7003.

Of the 200 reporting impoundments, 121 rate as high or significant hazards. [Footnote 405: EPA, Information Request Responses from Electric Utilities, available at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surve ys/index.htm.]. EPA should begin with these 121 impoundments, review the imminence of the hazards posed and where the hazard is, in fact, imminent, EPA should utilize setion 7003 to remedy the endangerment or close the impoundment.

B. Surface Impoundment Design And Monitoring Failures Indicate An “Imminent Endangerment”

EPA must also base a section 7003 action on the imminence of endangerment. Danger is imminent if present conditions indicate a future risk, even if the harm may not be realized for

years. [Footnote 406: United States v. Velentine, 856 F. Supp. 621, 266 (D. Wyo. 1994).]. In other words, there need not be an emergency to find imminent endangerment. [Footnote 407: United States v. Conservation Chemical, 619 F. Supp 162 (W.D. Mo. 1985)].

There is no objective rating system, such as the hazard potential ratings, to easily identify those impoundments that are most likely to endanger health and the environment through structural failure or groundwater contamination. However, several known factors can help assess the potential for impoundment failure or contamination and therefore the imminence of endangerment. First, one can look to the design, constriction, monitoring, age and height of an impoundment to help determine whether the impoundment has a risk of failure. [Footnote 408: Blank]. Second, the presence of a liner is a simple indicator of the imminence of groundwater831

contamination. [Footnote 409: See U.S. EPA, Hazardous and Solid Waste Management System; Identification and Listing of Special W astes; Disposal of Coal Combustion Residuals from Electric Utilities, Proposed Rule, 75 Fed. Reg. 35128, 35144 (Jun. 21, 2010) (Repeating that there are high potential risks associated with unlined and even clay lines surface impoundments.)].

[see the ori ginal comment for the table: High and significant hazard ponds without professional engineer design, constriction or monitoring]

Of the 121 identified ponds with high or significant hazard potential, 24 were not designed by a professional engineer and 15 of these 24 ponds were likewise not constructed and are not now monitored by a professional engineer. [Footnote 410: EPA, Information Request Responses from Electric Utilities, available at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/in dex.htm.]. This means that at a minimum there are 15 ponds, listed in Table X, that pose a threat to human life or the environment but their structural stability is not monitored by a professional engineer to assure that they do not manifest their hazard p otential. Moreover, these 15 hazard ponds were neither designed nor constructed with the expertise, oversight or input of a professional engineer. These ponds that present the most substantial endangerment may not be properly designed and
constructed and t hey are not regularly monitored by an expert in structural engineering. A number of these ponds are more than a half

- century

- old, and the very newest is a quarter century old. [Footnote 411: EPA, Information Request Responses from Electric Utilities, avail able at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm.]. These impoundments are built as high as 126 feet above the ground, they cover a total of more than 756 acres and contain almost 20,000 acre

- feet of toxic slurry. [Footnote 412: EPA, Information Request Responses from Electric Utilities, available at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm.].

This combination of factors presents a very clear, imminent and substantial endangerment to

surroun ding communities at risk from structural failure with a resulting flood possibly more substantial than Kingston in terms of human lives and the environment, and this says nothing of the health and environmental dangers posed by the subtler, but equally imp ortant threat posed by groundwater contamination.

C. Groundwater Contamination Presents A Substantial And Ongoing Danger

EPA has demonstrated that exposure to coal ash constituents through groundwater pathways presents a serious human health endangerment . [Footnote 413: See U.S. EPA, Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities, Proposed Rule, 75 Fed. Reg. 35128, 35144 (Jun. 21, 2010).]. When a surf

ace impoundment operates with a clay liner

— EPA has questioned the efficacy of clay liners

— or with no liner at all, the potential human harm is much more imminent and substantial. [Footnote 414: See U.S. EPA, Hazardous and Solid Waste Management System;
Ide ntification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities, Proposed Rule, 75 Fed. Reg. 35128, 35144 (Jun. 21, 2010).]. As EPA has already stated, “unlined or clay lined waste management units [] result in risk s greater than the832

risk criteria of [1 in 5,000] for excess cancer risk to humans or a [hazard quotient] greater than 1 for noncancer effects to both humans and ecological receptors...” [Footnote 415: See U.S. EPA, Hazardous and Solid Waste Management System ; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities, Proposed Rule, 75 Fed. Reg. 35128, 35144 (Jun. 21, 2010).].

For most of the 629 surface impoundments, EPA does not know whether a liner is prese nt. However, for about 150 ponds, information on liner status is available from the 1995 EPRI Comanagement Study. Presently, EPA estimates that approximately 74 percent of the nation’s surface impoundments are unlined. [Footnote 416: U.S. EPA, Hazardous an d Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities, Regulatory Impact Analysis, Appendix K1.]. EPA’s health review demonstrates that each and every one of these ponds poses a real endangerment. The known damage cases and proven likelihood of groundwater contamination from unlined or clay

lined impoundments demonstrates imminent harm and certainly, the heightened risk of cancer from these impoundments raises a reasonabl e concern for human health, amounting to a substantial endangerment.

These human health and environmental risks from unlined or insufficiently lined impoundments, combined with the 137 known groundwater damage cases compiled by EPA and by
Environmental I ntegrity Project, Earthjustice and Sierra Club, present EPA with another imminent and substantial hazard that EPA should address under the immediate authority of section 7003 rather than the delayed closure date presented in the proposed rule.

Should EPA ultimately promulgate rules under the authority of RCRA subtitle C, the risks from unstable and unlined impoundments will eventually be diffused. However, given the long lead

time for full applicability of subtitle C to coal ash impoundments, it is importa nt that EPA use all available authority to address the threat of another impoundment failure or growing groundwater
contamination.

RCRA §7003 provides a strong basis for closure

— or, at the very least, remediation

— of the most perilous ponds. Section 7003 authorizes EPA to take action against any solid waste handling that presents “an imminent and substantial endangerment to health or the environment.” [Footnote 417: 42 U.S.C. 6973.]. Courts have broadly interpreted this language to grant authority whenever there is reasonable cause for concern that present site conditions may harm human health or the environment, either immediately or in the future. [Footnote 418: United States v. Velentine, 856 F. Supp. 621, 266 (D. Wyo. 1994); United States v. Conservatio n Chemical, 619 F. Supp 162 (W.D. Mo. 1985); Leister v. Black & Decker, Inc., 117 F.3d 1414 (4th Cir. 1997).]. There can be no doubt that, at a minimum, there are 21 identified ash impoundments without proper design, construction or monitoring and 137 case s of groundwater contamination that EPA must consider
for section 7003 action.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a833

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a sub title D rule.



### 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:
Other Sections: 7.1 

### 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 ou r 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 le ft 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 disp osal units, while also allowing for its beneficial reuse in a manner that is 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 is necessary for EPA to retain and exercise appropriate enforcement authority. States, like Virginia, have consistently demonstrated the ability to conduct an effective and comprehen sive RCRA compliance/ enforcement program, as is illustrated by EPA's own feedback 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 E ndangerments to Human Health and the Environment for
releases of solid waste.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtit le D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10747_DEN

- 059

- 2 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG)834



### Commenter 1 : Jim Roewer Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.1 

### Comment Excerpt Text: Opponents to the Subtitle D option persist on incorrectly stating that this would merely preserve the status quo under which EPA could only issue "guidance." This is not correct. Under the Subtitle D option, EPA would issue federal regulations specifically designed for CCR disposal units. These regulations would be directly enforceable by the states and the public under RCRA's citizen suit provision and violators would be subject t o significant civil penalties. EPA would also retain its imminent and substantial endangerment authority to take action against any CCR units that posed a risk to human health or the environment. Ask any utility that has been the subject of a RCRA citizen suit, with injunctive relief and civil penalties in the balance, whether it views these regulations as mere "guidance." These are real regulations with teeth and it is misleading to suggest otherwise.

Response: The Agency acknowledges and appreciates the comment.



### 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: Substantive Comment Category:
Current T ask: Examine Context Assigned/Due:
Other Sections: 7.1 4.2.1 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 state 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 requirement. EPA is also proposing the exten sive 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 substantial endangerment to health or the e nvironment". The835

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 V and IX of the preamble for discussions as to how this subt itle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authori ties under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10771_DA

- 002

- 4 

### Organization 1 

### : Dynegy Inc. 

### Commenter 1 : Linda Whelan Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.5 4.2.1 

### Comment Excerpt Text: Dynegy supports the federal regulation of CCRs as nonhazardous waste. Subtitle D regulations implemented and enforced by the States

- as backstopped by EPA's broad enforcement authority
under R CRA § 7003, RCRA's citizen suit provisions, and authorities under the other federal

statutes

-- would protect human health and the environment in a manner equivalent to Subtitle C regulation, but without unduly burdening the economy or threatening jobs and electric reliability.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10791_DA

- 022

- 2 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG) 

### Commenter 1 : Jim Roewer Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Exc erpt Text: The second myth is that EPA's Subtitle D option is only "guidance." This is not correct: under the Subtitle D option, EPA would issue federal regulations specifically designed for CCR836

disposal units. These regulations would be directly enforceab le by the states and the public, and violators would be subject to significant civil penalties. These are real regulations with teeth and it is misleading to suggest otherwise. Response: The Agency acknowledges and appreciates the comment, the commenter i s referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10792_DA

- 023

- 3 

### Organization 1 

### : PMI Ash Technologies 

### Commenter 1 : Kyle Crake Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.6.1.4 

### Comment Excerpt Text: The only issue is whether the standards can be enforced uniformly. Rather than a 3 to 4 year implementation as propos ed in EPA's Subtitle D option, we suggest that they be able to be enforced more quickly via a legislative fix that would give EPA full authority to regulate CCRs similar to municipal solid waste. PMI Ash supports strong standards via Sub

- title D of RCRA by enacting federal enforcement authority such as recommended by the Congressional Research Service entitled, " Regulating Coal Combustion Waste Disposal: Issues For Congress".

Response: The Agency acknowledges and appreciates the comment, the commenter i s referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11027_CHA

- 062

- 1 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG) 

### Commenter 1 : Pat McCable Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 4.5.1 4.2.1 

### Comment Excerpt Text: USWAG supports the "Subtitle D Prime" option, with appropriate adjustment s, because of the options presented by EPA this is the one that best balances clean energy with affordability and reliability. USWAG shares EPA's objective of having a federal regulatory program that ensures the safe disposal of CCRs; the "D Prime" option will meet this objective.837

Opponents of a Subtitle D option persist on incorrectly stating that this would merely preserve the status quo under which EPA could only issue "guidance." This is not the case. Under a Subtitle D option, EPA would issue federal regulations specifically designed for CCR disposal units. These regulations would be directly enforceable by the states and the public under RCRA's citizen suit provision. EPA would also retain its imminent and substantial endangerment authority to take a ction against any CCR unit that posed a risk to human health or the
environment.

We agree that disposal units that are not fully protective must either be upgraded or closed; however, there are many CCR surface impoundments which are perfectly safe. The " D Prime" option will allow for development of a regulatory program that meets both of these objectives.

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 regulati ons. Clearly, there are state regulatory programs that already meet or exceed the proposed Subtitle D standards. States with qualified programs should be given the option of administering the federal Subtitle D rules if they so desire.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11291_CHI

- 005

- 3 

### Organization 1 

### : Wiscon sin Electric Power Company d/b/a We Energies 

### Commenter 1 : Art Covi Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.4.3 4.1.1 3.1.2 

### Comment Excerpt Text: We strongly favor the implementation of a RCRA Subtitle D (non

- hazardous) approach to fill the need for consistent national regulation for CCPs. We are concerned that a Subtitle C (hazardous) approach under one of the options in the proposed rulemaking wil l introduce a regulatory barrier and place an unintended stigma on CCPs with our customers that cannot be overcome. In fact, the stigma of a hazardous waste label on CCPs would not encourage beneficial use, but will certainly impair it. Unfortunately, this issue has already had a negative impact on some valuable beneficial uses as evidenced by cancelled and deferred projects that would have benefited from better quality construction and reduced cost to society if CCPs were used as they have been in many oth er past projects.

Undue restriction of well established and safe beneficial uses for CCPs under the proposed Subtitle C rulemaking provisions is over

- reaching and is a serious concern for We Energies, especially in light of our long term commitment to dev elop a wide range of beneficial uses

- an838

effort which has taken many years to propose, test and promote. The Subtitle D approach will establish national standards similar to those employed for municipal waste management facilities. If states do not adopt t he national standards within a defined timeframe, the EPA has the authority to step in and manage the non

- compliant state programs as they may already take action with other waste management activities under the endangerment provision of RCRA.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11344_P

- 057

- 1 

### Organization 1 

### : Pennsylv ania 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: 7.1 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 S ubtitle 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 t he 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 adversely 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 t he 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 difference s 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, groundwater monitoring and other839

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 authorized to m anage 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 part 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 Hum an 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.

Response: The Agency acknowledges and appreciates the comment, the commenter is
referred to Uni ts V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addi tion, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11574_L

- 022

- 4 

### Organization 1 

### : Gibbco, Inc. 

### Commenter 1 : Bruce Kazich Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.1 

### Comment Excerpt Text: The boiler slag that had been safely recycled for decades will now be landfilled, creating higher
costs for utilities and therefore hi gher energy costs for all citizens. Our customers will replace boiler slag with naturally mined materials, utilizing more energy, including fossil fuels, natural gas and electricity, further increasing our carbon footprint.

The environment can and will be protected with strong regulations under subtitle D. EPA should develop a performance based federal program for CCPs under RCRA D, which will insure that disposal is safely managed, while continuing to promote and expand beneficial use.

Response: The com menter is referred to Unit IV of t he preamble for a discussion o f EPA’s 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

- 0237

- 3 

### Organization 1 

### : Edison Mission Energy, LLC 

### Commenter 1 : Basil Constantelos Commenter Type: Electric Utility Company840

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 7.1 

### 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 dat a 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, EPA s hould 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 over ly 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 characteristics 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 environmental q uality. 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 unnecess arily 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 programs , 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 public 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, treat ment 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
Heal th and Environmental Concerns

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 mine 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
Envir onmental 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 Pennsylvania r egulatory framework841

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 human 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

- hazardo us 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 of t he 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

- ha zardous 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 Standards ” 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
with f ederal 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 and c urrently 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. The 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. EPA’ 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
health 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 maintai n 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 an imminent and substantial endangerment to human health an d 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 acknow ledges 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 trend toward more protective waste management practices, the fact that842

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

cont rols 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 stand ard 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 proceed u nder 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

con tamination 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 exa ctly 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 Eckh ardt 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 Assu rance, 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 with 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, environmen tal 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 withou t 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 RCRA § 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
Subt itle D’s standards.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: TRANS

- DEN

- 0039

- 2 

### Organization 1 

### : Utility Solid Waste Activit ies Group 

### Commenter 1 : Jim Roewer Commenter Type: Trade Association843

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.1.2 

### Comment Excerpt Text: One of EPA's stated concerns with the Subtitle D option is its perceived lack of federal enforceability under this approach. However, EPA does have the authority to issue federally enforceable Subtitle D rules for CCRs; it simply is not using that authorit y. I refer EPA to the same RCRA provisions under which it issued federally enforceable Subtitle D rules for municipal solid waste landfills. The first provision, Section 4010(c), directs EPA to develop Subtitle standards for facilities that may or may pot entially receive household or conditionally exempt small quantity generator waste. A related provision, Section 4005(c), authorizes EPA to enforce these Subtitle D regulations in states that fail to adopt and implement the federal rules. CCR disposal fac ilities fall within the scope of EPA's authority under these provisions, and without any question may or have the potential to receive these wastes. The development of Subtitle D regulations under 4010 of RCRA offers a win

- win for EPA and the public. Whil e this approach would likely require supplemental proposals, it will assure that the agency gets it right, providing the agency with the enforcement authority it desires while avoiding the unnecessary and adverse implications of Subtitle C. There is simpl y no reason for EPA to pursue the Subtitle C approach when it can develop federally enforceable rules under the less controversial, yet equally protective, Subtitle D nonhazardous waste program

Response: The Agency acknowledges and appreciates the commen t, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.
Section 4.2.6

- General concerns about self

- implementing RCRA Subtitle D standards (35211) Total Number of Submissions: 16
Total Number of Comments: 20



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03707

- 3 

### Organization 1 

### : Green Century Capital Management 

### Commenter 1 : Kristina Curtis Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.1 8.6.1 9.4.7 9.4.5 

### Comment Excerpt Text: Consistent, federally

- enforceable regulations would require utilities to use best practices for managing their coal ash, which would reduce environmental risk. The catastrophic c oal ash spill844

at the Tennessee Valley Authority (TVA) pond in December2008 demonstrated that current regulations are not enough to mitigate environmental and financial risk for utilities and their shareholders. TVA was in compliance with state regulations before the ash pond failure but now faces an estimated $1.2 billion in spill

- related costs, as well as expenses associated with over 50 lawsuits that have been subsequently filed. The TVA disaster, along with the 24 other cases of proven coal ash

- related e nvironmental damage reported by EPA, makes it clear that stronger rules are needed to ensure that companies consistently use best practices to mitigate risk.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 18 

### 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: Duke Energy does n ot believe that a self

- implementing regulation as outlined in the Proposed Rule is a workable solution. The uncertainty associated with the compliance and reporting requirements of the self

- implementing regulatory structure proposed by EPA under the Subtit le D option would add an undue regulatory burden with no corresponding environmental benefit. Rather, it is essential that EPA provide a mechanism for states with qualified programs to
administer the CCR rules and standards

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 38 

### Organization 1 

### : Duke Energy 

### C ommenter 1 : Mike Stroben Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.4.4 

### Comment Excerpt Text: Furthermore, it must be noted that most existing state environmental regulatory programs provide that all applicable state agencies (e.g., Department of Natural Resources or other state and local agencies with jurisdiction over specific siting restrictions) be part of the siting and permitting process for new surface impoundments and landfills. EPA should consequently845

provide a mechanism for states to adopt these regulations to ensure all location restrictions are addressed before approvals are issued for new facilities. Again, it is evident that any self

impl ementing rule would create an excessive burden by requiring compliance with duplicative and potentially conflicting requirements with no corresponding human health or environmental
benefit.

Response: The Agency acknowledges and appreciates the comment, t he commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR und er subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### 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 7.4.2 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 as surance of compliance.

EPA’s proposal, however, focuses largely on the absence of a permit and the concept that a licensed professional engineer’s judgment will take care of the details in terms of proper CCR handling. It makes much more sense for EPA to confer with the utility industry and their service providers, like ourselves, to identify specific fundamental performance criteria under a 4010 permit program. Proper handling of CCRs requires waste analysis to determine the specific
characteristics of th e particular waste stream (e.g., its potential for generation of hydrogen sulfide gas), its pH, water content and impact on slope stability, potential for heat generation and potential to clog leachate and gas collection lines. There needs to be a plan to handle the material in a way that controls dust, and uses the appropriate amount of moisture to control dust. Containment standards are necessary for transportation of dry CCRs.

It would be desirable for EPA to provide baseline criteria for waste accepta nce and analysis to assure proper recognition of waste chemistry and physical characteristics. We realize that because the record for this rulemaking has not focused on describing good operating practices, EPA may need to re

- propose a Subtitle D permit pro gram 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, Subtit le D service providers, state regulators (Illinois and Pennsylvania, for example, have developed standards regulating use and disposal of CCRs and would serve as resources for EPA)[Footnote 6: See, e.g., Pennsylvania Department of Environmental Protection,846

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, gener al operating standards, conditions for beneficial use, recordkeeping and reporting); Illinois Environmental Protection Agency, Title 35, Subtitle B, Subchapter *, Part 816 (quality control procedures for CCR mixtures).] and experts in affected community an d environmental groups. This group could engage in the kind of discussion that would allow EPA to re

- propose promptly a fully developed
standard.

Response: The Agency acknowledges and appreciates the comment, the commenter is
referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit I I of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06400

- 15 

### 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: 4.4.5.1.1 4.8 

### Comment Excerpt Text: Flexibility to employ alternative liner and cover designs (CCR Proposal at 35202): EPA forbids use of alternative liner and cover designs s imply because its Subtitle D proposal does not envision a permit. As we stated at the outset of these comments, we believe EPA has and should exercise its authority under RCRA Section 4010 to require federally enforceable permits. The program for MSW landf

ills has considerable experience with alternative liner and cover designs, and state Subtitle D permit writers have sufficient experience to evaluate safe alternatives to EPA’s basic designs. See, e.g., Interstate Technology and Regulatory Council, Technic al and Regulatory Guidance for Design, Installation, and Monitoring of Alternative Final Landfill Covers (December 2003).

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discu ssions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discuss es EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 19 

### 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 Government847

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.5 4.2.2 

### Comment Excerpt Text: In order to accomplish this recommended approach, EPA should undertake considerable additional analysis based on comments, revise its proposed rule to focus solely on regulation under Subtitle D of RCRA in a manner consistent with the approach used for municipal solid waste that calls for state oversight. Onc e these revised rules are drafted, EPA should provide for additional public comments.

The department further recommends to EPA that the best management practices for CCR materials is under an effective Subtitle D waste management program with adequate st ate oversight. An effective subtitle D program is a solid waste program with sufficient state regulatory over

- sight covering: facility siting, liner requirements, monitoring, capping, long term care and financial responsibility that should be adequate to e nsure proper management of CCR material. This must include review by state Waste Program Regulatory staff in siting, design, and construction to ensure compliance. Based on our experience, WDNR does not believe the EPA
self

- implementing approach would be s uccessful and the self

- implementing provision should be removed and replaced with a requirement for state oversight where states can demonstrate an effective program under Subtitle D. WDNR recommends EPA reexamine its interpretation of its regulatory autho rity to delegate to states the authority to manage Subtitle D equivalent programs.

If additional authority is needed for EPA to delegate such a program to the states, then EPA should work with Congress to create the necessary authority.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discu ssion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 46 

### 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: 3.4.1.1.2 

### Comment Excerpt Text: It is also essential that the rule containing either exemptions or an expeditious conflict resolution process between State agencies and EPA Regions for in the event of landfill techn ology change, improved design methods, construction advances, or other changes that are not compatible with848

the technical design requirements listed in the proposed rule. Examples of geologic scenarios or construction materials that vary from the proposed rule are cited previously. Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also refe rred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06808

- 13 

### 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: 3.2.2 3.7.5 3.7.4 3.4.1.4.1 

### Comment Excerpt Text: Subtitle C regulation would be much more protective than Subtitle D regulation because it would allow New Mexico control over management practices from “crad le

- to

- grave,” that is from point of generation to final disposal. Whereas Subtitle D regulation would only cover CCR disposal, Subtitle C would lead to a phasing out of wet management of CCRs in surface impoundments, which is the primary cause of CCR dispo sal

- related environmental contamination. The State would also have much better control over corrective action and closure/post

- closure care under Subtitle C regulation; under Subtitle D these activities are left to the facilities to implement.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06820

- 8 

### 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: 4.5 

### Comment Excerpt Text: EPA’s proposed Subtitle D alternatives are not without some problems. The Roundtable’s biggest concern is the fact that both alternatives appear to lack any mechanism for qualified state programs to step in and directly administer the regulations, even where those programs meet or
exceed the feder al controls. Such an approach makes no practical sense, and it would result in849

parallel and redundant regulatory programs for the same materials.

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 the Agency does now in the case of municipal solid waste landfills). In those states that have qualifying controls for CCRs, EPA should allow the states (with appropriate EPA backup) to a dminister the controls. Under this approach, many of the self

- implementing procedures in the Subtitle D approach could
be eliminated

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07534

- 1 

### Organization 1 

### : Aquaterra Envi ronmental Solutions, Inc. 

### Commenter 1 : Scott Waltrip Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

Because this is a self

- implementing rule there may be no st ate oversight, and the only guaranteed enforcement mechanism will be through the court systems. Therefore it is imperative that this proposed Subtitle D rule be as clear as possible.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 9 

### Organization 1 

### : Maryland Depar tment 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: 7.4.1 

### Comment Excerpt Text:

The use of self

- implementing rules raises compliance concerns and will lead to a dual regulatory system in those states, including Maryland, that have implemented more comprehensive850

requirements.

Response: The Agency acknowledges and appreciates the comment, the comme nter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subti tle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08251

- 24 

### Organization 1 

### : Massachusetts Department of Environmental Protection 

### Commenter 1 : James C. Col man Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

MassDEP has concerns with the self

- implementation aspect of the proposed Subtitle D rules. Under this option, which MassDEP prefers, EPA should clarify that a state can be more restrictive than the federal rule, so that where a state has a Subtitle D regul atory program, the state program and permitting process takes precedence over any self

- implementation aspects of the proposed rule. (The rule simply states now that an owner or operator must comply with any other applicable federal, state, tribal or local laws or other requirements.)

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also r eferred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0 640

- 08251

- 32 

### 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 4.1.1 10.2.2.1 

### Comment Excerpt Text: MassDEP strongly recommends the regulation of CCR under Subtitle D and beneficial uses of CCR under a BUD program like the one established under the Massachusetts solid waste program for the reasons stated abo ve. MassDEP believes that there are legitimate beneficial uses for CCR, particularly where encapsulated in a solid matrix and other uses that may be appropriate upon review by a state environmental agency. MassDEP does not believe that a self

implementing program for many beneficial uses is appropriate since CCR can contain numerous851

contaminants of concern that have the potential to increase risks to public health and the environment where uses are not carefully reviewed and controlled. However, an approach that includes federal or state review and approval of beneficial uses, coupled with a self

- certification or third party certification of compliance can be made to work.

Response: The Agency acknowledges and appreciates the comment, the commenter is
ref erred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RC RA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The commenter is also referred to Unit IV of t he preamble for a discussion o f EPA’s 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

- 09337

- 16 

### 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: 3.2.2 

### Comment Excerpt Text: According to EPA, one reason for proposing Subtitle C regulation is that EPA cannot re quire states to issue permits for CCR management units under Subtitle D. Arizona, like many other states, does have a permitting mechanism for CCR surface impoundments and landfills.

EPA further suggests regulation under Subtitle C of RCRA is necessary be cause EPA lacks direct enforcement authority under Subtitle D. This fails to acknowledge the states' existing enforcement authorities and actions under RCRA. ADEQ, like other state agencies, currently inspects Subtitle D facilities and takes enforcement wh en necessary.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09530

- 10 

### Organization 1 

### : PSEG Power LLC and Public Service Electric and Gas 

### Commenter 1 : Eric B. Svenson Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:852

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

XI. The Subtitle D Program Must Be Enforced at the Federal level

Due to apparent inconsistencies in how the various state programs enforce under Subtitle D and the absence of qualified state programs to directly administer the Subtitle D program and enforce

regu lations, PSEG is concerned how EPA would ensure there is consistent application of enforcement of a Subtitle D program at the state level.

While there may be state CCR regulatory programs with permitting, liner and groundwater monitoring requirements sim ilar to those proposed in the Subtitle D options, such states are in the minority. The question of what these state programs are doing to uniformly ensure protection
of the environment and administer enforcement remains. Thus in the absence of a federal

en forcement program, the administration of self

- implementing federal controls, while possibly duplicative, would at a minimum ensure these structures are managed to be fully protective of
human health and the environment.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10017

- 6 

### Organization 1 

### : Salt River Pro ject (SRP) 

### Commenter 1 : Daniel J. Casiraro Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.5 

### Comment Excerpt Text: Subtitle D Prime, much like the main Su btitle D proposal, requires some notable improvements for it to be an effective and manageable rule. SRP believes that a fundamental improvement in the Subtitle D Prime and the main Subtitle D proposal would allow qualified state programs to directly admin ister the federal Subtitle D regulations for CCRs when the state program meets or exceeds the federal requirements. This action would minimize duplicative regulation by state and federal agencies and allow qualified state programs to tailor the rules to th eir unique situations
instead of the self

- implementing approach contained in EPA's proposal.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a853

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10495

- 54 

### 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 

### Comment Excerpt Text: B. Many States Are Unlikely To Adopt Subtitle D Criteria

Overarchingly, there is no subtitle D criteria that can ensure “no reasonable probability of adverse effects on health or the environment from disposal” of coal ash and other CCRs. Decades of failure by state regulatory agencies to regulate the d isposal of these wastes in any reasonably effective manner make this clear. In addition, any argument in favor of subtitle D regulation ignores the states’ collective failure to enforce the subtitle D criteria that was promulgated by EPA over three decades ago in 1979. [Footnote 335: Criteria for Classification of Solid Waste Disposal Facilities and Practices, Final Rule, 44 Fed. Reg. 53438, (September 13, 1979).].

Section III.B.2, supra, describes the failure of states to enforce the subtitle D open dumpi ng criteria found in sections 247.3

- 3 and 257.3

- 4. [Footnote 336: 40 C.F.R. §§ 257.3

- 3 and 257.3

- 4.]. The open dumping criteria found in these provisions are exceedingly straightforward. For example, for the key groundwater protection standard in section 2 57.3

- 4, a violation occurs when the groundwater exceeds a specified MCL beyond the solid waste boundary of a coal ash dump. Yet at site after site where contaminated groundwater tripped the standard, for thirty years the states declined to enforce this reg ulation.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### 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 Sections: 7.1854



### 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 referred to Units V and IX of the preamble for discussi ons as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: TRANS

- ARL

- 0002

- 5 

### Organization 1 

### : Environmental Integrity Project 

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



### Comment Excerpt Text: A lot of talk about Subtitle D. Under Subtitle D, if you contaminate groundwater at these sites, you are supposed to be shut down or upgraded. How many of these sites failed to meet that
standard and h as anything been done about enforcement? Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule. The Agency is unclear as to the point the commenter is trying to make with regar to the number of sites failing to meet groundwater standards. Under the rule being promulgating in this rule, existing CCR surface impoundments and existing CCR landfills wi ll be able to continue operation for the remainder of their useful life. However, unlined CCR surface impoundments, as defined in the rule, must initiate closure as part of their corrective action plan is they exceed any groundwater protection standard at any time in their life.



### Comment Number: TRANS

- CLT

- 0153

- 1 

### Organization 1 

### : Greenpeace USA 

### Commenter 1 : Robert Gardner Commenter Type: Advocacy Group
Classification: Substantive Comment Category:855

Current Task: Examine Context Assigned/Due:



### 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, lea ding 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.

Response: The Agency acknowledges and appreciates the comment, the commenter is
refer red to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA . In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Section 4.3

- Notifications: state and public notifications of third

- party certifications (35194

- 35195)
No comments are associated with this issue.

Sec tion 4.3.1

- EPA solicits comment regarding methods for providing notifications to public and states: O/O must maintain internet site to post notifications and info that standards are met (35194, 35195) Total Number of Submissions: 20 Total Number of Comme nts: 24



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 00368

- 5 

### Organization 1 

### : BMC Aggregates L.C. 

### Commenter 1 : Sherman Lundy Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.3.2.1 3.11 

### Comment Excerpt Text: 5. As a private business regulated by local, state, and federal rules, any data required for such operations should be provided to the appropriate contractor (whether public or private) or appropriate governmental agenc y however, publication of that data should be the discretion of the contractor or agency and should not be a requirement for the business under contract. Also, the development of such regulations for the operations as proposed by governmental agencies or

r equirements by private contractors should be result of the best science and review by the appropriate agencies, contractors, service providers rather than public debate. Our industry was not included in any of the reviews or discussions regarding the CCRs and quarry reclamation at any level.856

Response: The commenter is referred to the preamble discussion found in Unit IV that deals with the establishment of a publicly accessible internet site for reporting the regulatory requirements of the rule and the basis for this requirement as well as other reporting and notification requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06040

- 7 

### Organization 1 

### : Longview Power, LLC 

### Commenter 1 : Joseph R. Douglass Commenter Type: Electric Utility Facility
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Longview objects to the numerous provisions in the proposed Subtitle D approach to require maintenance of a "publicly accessible internet sit e". Documentation of regulatory compliance is currently available to the public, through the regulatory agencies. Dissemination of this extensive information directly to the public would add further compliance costs, and is best uniformly managed by the re gulatory agency rather than by each individual regulated facility.

Response: The commenter is referred to the preamble discussion found in Unit IV that deals with the establishment of a publicly accessible internet site for reporting the regulatory requir ements of the rule and the basis for this requirement as well as other reporting and notification requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 7 

### Organization 1 

### : We Energies 

### Commenter 1 : Art Covi Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.3.2 

### Comment Excerpt Text: COMMENT: Effective mechanisms already are in place for both public input and review of regulatory documents through the Wisconsin Department of Natural Resources (WDNR) . Everything submitted to WDNR, except Confidential Business Information (CBI), is a public record and is available to the public. WDNR is the appropriate avenue to make this information
available as it wil l provide consistency and continuity of the information available to the public.

For example, we are aware that WDNR is assembling a database to house all beneficial use information covered by their Beneficial Use of Industrial Byproducts program (NR 538 Wis. Admin. Code) and provide public access to the data. Therefore, additional requirements for an individual company to maintain an independent internet site are redundant and provide no857

additional benefit to the public.

Response: The commenter is referred to the preamble discussion found in Unit IV that deals with the establishment of a publicly accessible internet site by the owner or operator of the CCR landfill or surface impoundment for reporting the regulatory requirements of the rule . This section also discusses the basis for this requirement as well as other reporting and notification requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 143 

### 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 believes that full public notice prior to any Subtitle D permit approvals is the best route. The department would probably place the Subtitle D requirements in its special waste regulations, and require publication of public notice in the local paper. The agency also places these legal advertisements on its internet site. Respon se: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 75 

### 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: E. Southern Company Opposes the Delegation of Agency Information

- Management Functions to Industry.

EPA repeatedly expresses concern about a lack of direct federal enforcement of a Subtitle D program. One response to that concern is a proposal that would require owners and operators of surface impoundments to create a web site and post certain information to the internet, such as858

notifications, demonstrations, and reports required under the Subtitle D regulations. [Footnote 274: See 75 Fed. Reg. 35128, 35 194 (June 21, 2010).] Southern Company vigorously opposes that proposal. EPA may assemble and post information it deems useful or necessary as part of the regulatory oversight process, subject to any claims of confidentiality. However, absent specific stat utory authorization, it is inappropriate for EPA to delegate that oversight function to the regulated community.

Southern Company has identified at least three substantial problems associated with outsourcing EPA’s information management responsibilities to those subject to EPA regulation. First, no statute authorizes EPA to demand that private parties act as an information clearinghouse for information pertaining to EPA’s regulatory functions, either generally or in the specific context
of CCBs. To the c ontrary, public information access statutes such as the Freedom of Information Act are predicated on an assumption that information held by the government is presumptively public, while information held by a private entity presumptively is not.

Second, S outhern Company will not post information Southern Company deems to be confidential. As discussed in greater detail below, see Part V.F, this includes information pertaining to the structural stability of ash pond impoundments. Under the usual scenario, if EPA holds information Southern Company regards as confidential, the burden is on Southern Company to demand that EPA protect the information from public disclosure and to sue EPA in federal court if EPA refuses to do so. By attempting to outsource the inf ormation management role to industry, EPA effectively allows industry to make the initial determination as to confidentiality and places the burden on citizens and EPA to take action to compel disclosure. Southern Company questions whether EPA truly desire s that result.

Third, Southern Company questions whether citizen groups will accept electric utility’s self

reported information as compared to information that a federal agency may provide, regardless of the amount of effort Southern Company exerts to e nsure the accuracy of information. By requiring citizen groups to obtain their information from industry instead of a regulator, EPA is inviting conflict as to the adequacy of data and the sufficiency of the utilities’ responses to citizen groups’ requests for clarification or additional information. The fact that the industry has provided information to a federal agency, subject to criminal penalties for providing false information, [Footnote 275: See 18 U.S.C. 1001,] provides a useful public assurance of the integrity of the information

Response: The commenter is referred to the preamble discussion found in Unit IV that deals with the establishment of a publicly accessible internet site by the owner or operator of the CCR landfill or surface impoundment fo r reporting the regulatory requirements of the rule . This section also discusses the basis for this requirement as well as other reporting and notification requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06410

- 55 

### Organization 1 

### : Commenter 1 : Anonymous Commenter Type: Anonymous
Classification: Substantive859

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



### Comment Excerpt Text: Most large electric utilities have websites and post information about the plants. Regulatory permitting reports a nd information for the plants, including analytical results, are not found on these sites. Instead, states or EPA post this information on their websites as they review the information. Utilities should provide links to EPA and state websites where this in formation can be found in order to limit the plant’s ability to interpret the information inappropriately.

A public notification of document postings is not necessary if the documents will only be provided on the website. Most websites have a recent addi tions link and/or optional email notifications for any new information posted on the website. Unless a public notification is posted outside the website (e.g., newspaper ad), only a limit group of people would be aware of new information. In addition, in r ural areas, internet is limited. Hardcopies of plant information should to be readily available in a public access area, such as a library. Biasing plants to provide information to websites and not to public access areas has the potential to limit the circ ulation of information pertinent to local communities.

Public notifications of potentially dangerous conditions at a plant pose a different complexity outside information already available on websites. Local emergency responders and the state
should immed iately be notified of these conditions to be put on alert for a possible evacuation. Emergency responders are trained to conduct safe and orderly evacuations.

Response: The commenter is referred to the preamble discussion found in Unit IV that deals

with the establishment of a publicly accessible internet site by the owner or operator of the CCR landfill or surface impoundment for reporting the regulatory requirements of the rule . This section also discusses the basis for this requirement as well as other reporting and notification requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 45 

### 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: 4.2.2 

### Comment Excerpt Text: The proposed notification by use of internet web pages is after

- the

- fact and does not substitute for interaction with the utility and its consulting engineer at the siting and design stage and observation during construction. We have found that these steps are crucial for effective design
and documentation of solid waste l andfills since landfill plan review in our agency started in the
mid

- 1970’s.860

The proposed internet web posting of notices and other information may be sufficient for after

the

- fact record

- keeping. We do not object to the use of the web, although EPA shou ld be cautious to not become dependent on a technology that may become outdated. We recommend that the rule require that owner/operators of CCR landfills be required to provide documents directly to the State agencies that regulate landfills. Documents cou ld be provided electronically and, once received by the State agencies, would be publicly available under State and Federal public record rules.

If EPA intends to proceed with the RCRA Sub D self

- implementing alternative, the rule should also clearly sta te that it does not supersede or override authority by State agencies to require a review process for plan review of siting, design, construction, waste filling, and closure.

Response: The commenter is referred to the preamble discussion found in Unit IV that deals with the establishment of a publicly accessible internet site by the owner or operator of the CCR landfill or surface impoundment for reporting the regulatory requirements of the rule . This section also discusses the basis for this requirement as well as other reporting and notification requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 47 

### Organization 1 

### : Wisconsin Department of Natural Resources (WI DNR) and Public Se rvice 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: 4.2.2 

### Comment Excerpt Text: The proposed notification of the State agencies discussed on pp. 35194

- 35195 or the preamble proposes that a web site maintained by each utility would be required for concurrent notification of States agencies and the public of documentation in the operat ing record. This is after

- the

- fact reporting of accomplished actions, and is not sufficient for effective plan review and interaction prior to changes being made to design, construction, monitoring, recordkeeping, etc. of utility CCR disposal facilities.

We do not object to the posting of information on a web page, as long as cost of maintaining the web page is bourn by the utilities and provisions are made to assure that the web page or successor technologies will be maintained over the time period for s iting, licensing, construction, filling, closure, and long

- term care, which collectively could be several decades.

However, a more significant issue for environmental protection is to assure that State agency authority will be maintained for plan review, licensing, inspections, construction oversight, receipt of monitoring data, etc., without being superseded or compromised by a federal rule. Information should not be withheld from State agencies because of perceptions that it is a duplication of the web

- based notification. In particular, documentation of proposed design, achieved construction, monitoring instrumentation and results, closure work, remedial actions,861

etc., should be required to be provided directly to the State agency prior to implementation and in accordance with State agency timelines. The rule should not imply or state that it is sufficient to post information on a web page after the fact as satisfying the legitimate interest State agencies have in regulating CCR disposal facilities.

We have found it essential as a State regulatory agency to perform plan review prior to allowing owners to proceed with construction, to inspect facilities during construction, to be able to review construction documentation and any proposals for design chang es before they are implemented, and to receive all monitoring data for retention in and extraction from our electronic database systems. It is not sufficient for the State agencies to be notified of such items
after the fact. Response: The commenter is re ferred to the preamble discussion found in Unit IV that deals with the establishment of a publicly accessible internet site by the owner or operator of the CCR landfill or surface impoundment for reporting the regulatory requirements of the rule . This

sec tion also discusses the basis for this requirement as well as other reporting and notification requirements.

The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this su btitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory autho rities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06865

- 22 

### 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 use of a publicly accessible internet site should be used in conjunction with the state programs for public access to the records. This coordination should be done through the
individu al states so that the information for all the sites in the state is similar. The states can provide the site format and linkage to allow the regulators to direct requests for information to the proper locations. Through this program the appropriate timing for posting of data and the methods for updating information can be established. The federal regulation should provide for the listing of the type of data to posted, however the form and timing should be left up to the

states

Response: The commenter is re ferred to the preamble discussion found in Unit IV that deals with the establishment of a publicly accessible internet site by the owner or operator of the CCR landfill or surface impoundment for reporting the regulatory requirements of the rule . This section also discusses the basis for this requirement as well as other reporting and notification862

requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06865

- 4 

### 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:
Other Sections: 4.3.2 

### Comment Excerpt Text: State Management of Site Data EPA's provision for public access to site data should be managed through the state agencies. Development of a standard platform for reporting and posting through the states will provide a consistent format to the public for all facilities within that state . Minimum standards under the federal regulations for what information to be posted would provide the framework to ensure equally applicable standards, and thus making easier the reporting burden for generators, such as Constellation, with operations in mu ltiple stales. The stale programs could also dictate the timing associated with the posting of the information since items such as a permit application can often require an approval process by the state before the permit is even considered for public comme nt Additionally, under the existing Subtitle D programs, states have already determined acceptable timing on items such as reporting of groundwater data and assessment monitoring. Judicious use of internet postings and required data to be posted will enab le states and the power plant owners to provide consistent reliable data. The institution of sign

- in procedures or tracking methods for visitors to the web site will help to encourage appropriate use of the data. Although Constellation does not currently o perate impoundments for CCR disposal, we recognize that uncontrolled access to such information such as impoundment design and construction specifications may not be in the best interest of the citizenry from a homeland security perspective

Response: The c ommenter is referred to the preamble discussion found in Unit IV that deals with the establishment of a publicly accessible internet site by the owner or operator of the CCR landfill or surface impoundment for reporting the regulatory requirements of the r ule . This section also discusses the basis for this requirement as well as other reporting and notification requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06987

- 34 

### Organization 1 

### : Entergy Services, Inc. 

### Commenter 1 : Joseph Hantz Commenter Type: Electr ic Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:863

Entergy suggests that this information be required to be included in the owner’s/operator’s operating record, and persons with legitimate interests in reviewing these data could make a written request to the owner/operator or permitting authority. Prior to disclosing this information to the requesting party, the owner/operator could coordinate with proper federal and state

au thorities to ensure that the requesting parties are not on any list of interest to federal/state homeland security agencies. Only after this screening measure has been completed would the
information be released. This condition would also allow the owner/o perator of the facility and federal/state authorities to know the names and identities of all organizations requesting this sensitive information on the construction of the impoundment. This additional measure would not be overly burdensome and would help protect against the misuse of these data. Response: The commenter is referred to the preamble discussion found in Unit IV that deals with the establishment of a publicly accessible internet site by the owner or operator of the CCR landfill or surface impou ndment for reporting the regulatory requirements of the rule . This section also discusses the basis for this requirement as well as other reporting and notification requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07048

- 11 

### Organization 1 

### : TransAlta Centralia Generation 

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



### Comment Excerpt Text: 4. The proposed requirement for each plant and/or comp any to maintain a compliance reporting website that contains all information required by the regulations is excessive and does not allow the ability to keep confidential business information confidential while reporting it properly to required agencies. Th e requirement generates an information technology and regulatory burden upon companies that serves no useful function. If information is not required to be reported to EPA or State Agencies, then a requirement to post it on company websites is contrary to all normal regulatory procedures and exceeds any nOlmal reporting requirements. If the public requires access to information required by the regulations to be submitted to the State regulators, the State Agency or EPA would be in the best position to make required reports available to the public on the agency website just as Toxic Release Inventory data is made available to the public by EPA. To address this concern, it may be appropriate for companies to submit required regulatory reports to the agency in electronic format. Response: The commenter is referred to the preamble discussion found in Unit IV that deals with the establishment of a publicly accessible internet site by the owner or operator of the CCR landfill or surface impoundment for reporting th e regulatory requirements of the rule . This section also discusses the basis for this requirement as well as other reporting and notification requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 31 

### Organization 1 

### : Nebraska Department of Environmental Quality (NDEQ)864



### Commenter 1 : David B. Haldeman Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: NDEQ’s permit program requires that the facility maintain an o perating record at the facility or at an alternative location approved by NDEQ. In addition, the permittee is required to notify the NDEQ when records have been placed in or added to the operating record. The NDEQ also maintains a complete permit file that is accessible to the public. Therefore the use of an internet site would be duplicative and unnecessary. If a state implements a permit program with requirements for maintaining an operating record, notification requirements to the state, and
allows acces s to permit documents then the notification requirements proposed by EPA in this
rule should be waived. Response: The commenter is referred to the preamble discussion found in Unit IV that deals with the establishment of a publicly accessible internet site by the owner or operator of the CCR landfill or surface impoundment for reporting the regulatory requirements of the rule . This section also discusses the basis for this requirement as well as other reporting and notification requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 24 

### Organization 1 

### : Ohio Environmental Protection Agency 

### Commenter 1 : Chris Korleski Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections : 4.2.1 

### Comment Excerpt Text: The proposed RCRA subtitle D approach is appropriate to establish national minimum standards. The requirements are sufficiently clear and unambiguous. The requirements that owners or operators of CCR disposal facilities maintain independently reviewed docu mentation of compliance on publically available websites 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 t o 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 don’t 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 this comment. The commenter is
referred to the preamble discussion found in Unit IV that deals with the establishment of a publicly accessible internet site by the owner or operator of the CCR landfill or surface865

impoundment for reporting the regulatory requirements of the rule . This section a lso discusses the basis for this requirement as well as other reporting and notification requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 6 

### Organization 1 

### : Ohio Environmental Protection Agency 

### Commenter 1 : Chris Korleski Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.1 

### Comment Excerpt Text: If the authority to approve state CCR disposal facility permitting programs is not possible, Ohio
EPA notes that the proposed RCRA subtitle D requirements are clear and unambiguous. The requirements that owners or operators of CCR disposal facilities maintain independently reviewed documentation of compliance on publically available web sites and provide notice to the state environmental agency ensures public access. These requirements establish a substantial basis for both citizens and those states without equivalent state requirements to successfully enforce under RCRA citizen suit authority. This is muc h 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 don't require the owner or operator to document compli ance, the proposed RCRA subtitle D rules are actually useful towards developing a citizen suit.

Response: The Agency acknowledges and appreciates this comment. The commenter is referred to the preamble discussion found in Unit IV that deals with the est ablishment of a publicly accessible internet site by the owner or operator of the CCR landfill or surface impoundment for reporting the regulatory requirements of the rule . This section also discusses the basis for this requirement as well as other report ing and notification requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08850

- 14 

### Organization 1 

### : Lansing Board of Water & Light (BWL) 

### Commenter 1 : Lansing Board of Water & Light (BWL) Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Posting and Maintenance of Internet Sites Must Be Simplified. Under the Subtitle D option, addressing the intranet posting of design criteria for existing surface impoun dments, ?257.71(b) lists multiple posting requirements. We would propose of these that only one would be of significance to the general public

- the impoundment is structurally sound. Posting requirements866

can be addressed simply through making the certifica tion of the registered professional engineer outlined in (b)(13) available on the website.

Response: The Agency acknowledges and appreciates this comment. The commenter is referred to the preamble discussion found in Unit IV that deals with the establish ment of a publicly accessible internet site by the owner or operator of the CCR landfill or surface impoundment for reporting the regulatory requirements of the rule . This section also discusses the basis for this requirement as well as other reporting and notification requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08864

- 7 

### Organization 1 

### : JEA 

### Commenter 1 : Athena Mann Commenter Type: Electric Utility Facility
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.4.5.1 4.4.7 

### Comment Excerpt Text: Regarding the Subtitle D or D Prime approaches, JEA would point out that the onesize fits all national standards being proposed do not allow enough flexibility for utilities to operate efficiently, and using corporate web sites as an enforcement tool would seem to be a path toward unproductive litigation. More flexibility is needed in the framework of the regulations to allow for equally protective but different liner systems, such as dual geomembrane sy stems, and to
consider State

- approved site specific groundwater monitoring programs that may deviate from the proposed standards.

Response: The Agency acknowledges and appreciates this comment. The commenter is referred to the preamble discussion found i n Unit IV that deals with the establishment of a publicly accessible internet site by the owner or operator of the CCR landfill or surface impoundment for reporting the regulatory requirements of the rule . This section also discusses
the basis for this re quirement as well as other reporting and notification requirements. The commenter is further referred to the discussion in Unit VI regarding alternative liner designs for new unit as well as the groundwater and corrective action requirements.



### Comment Nu mber: EPA

- HQ

- RCRA

- 2009

- 0640

- 09281

- 5 

### Organization 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: National standards for CCR disposal facilities will also serve the important867

function of promoting public confidence in a viable control system. Under EPA’ s Subtitle D proposal, the public will have ready access to information that can establish a parti cular unit’s compliance with regulatory requirements. On

- line access to such information will allow the public to have an unprecedented vantage point as a compliance watchdog. To complement regulatory agencies with finite resources and competing priorities affecting decisions to bring enforcement actions or undertake administrative processes to obtain relevant compliance

- related documents, under EPA’s Subtitle D proposal citizens can add to compliance incentives by identifying enforcement cases and analyzin g compliance issues whenever and wherever they
have internet access.

Response: The Agency acknowledges and appreciates this comment. The commenter is referred to the preamble discussion found in Unit IV that deals with the establishment of a publicly acce ssible internet site by the owner or operator of the CCR landfill or surface impoundment for reporting the regulatory requirements of the rule . This section also discusses the basis for this requirement as well as other reporting and notification requirem ents.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09284

- 54 

### 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 statute contains provisions that protect trade secret information from being released to the public.

Response: The Agency acknowledges and appreciates this comment. The commenter is referred to the preamble discussion found in Unit IV that deals with the establishment of a publicly accessible internet site by the owner or operator of the CCR landfill or surface impoundment for reporting the regulatory requirements of the rule . This section also discusses the basis for this requirement as well as other reporting and notification requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09349

- 14 

### Organization 1 

### : Santee Cooper 

### Commenter 1 : Jay Hudson Commenter Type: Electric Uti lity Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:868



### Comment Excerpt Text: While state and federal regulators and local emergency responders have a need to know certain details, the information should be excluded from unsupervised public access due to the potential for terrorist activity. This practice is routinely followed by the Federal Energy Regulatory Commission. The existing guidelines and practices applied to the hydroelectric energy sector
should be adopted for the coal fired energy sector which accounts for the vast majority of energy production in the nation.

Response: The Agency acknowledges and appreciates this comment. The commenter is referred to the preamble discussion found in Unit IV that deals with the establishment of a publicly accessible internet site by the owner or operator of the CCR landfill or surface impoundment for reporting the regulatory requirements of the rule . This section also discusses the basis for this requirement as well as other reporting and notification requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09349

- 16 

### Organization 1 

### : Santee Cooper 

### Commenter 1 : Jay Hudson Commenter Type: Electric Uti lity Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: In effect, EPA proposes to establish a "shadow" reporting system that will exist independently of existing (and future) state reporting systems. While Santee Cooper acknowledges EPA's concerns about the lack of federal enforcement, and the need for transparency, Santee Cooper believes that the proposed public notification requirements are overreaching, and usurp the proper role o f state reporting and enforcement mechanisms. EPA should eliminate the website requirement and should defer to the states' decisions about what should be reported to them, and how the public should be granted access to that information.

Response: The Agen cy acknowledges and appreciates this comment. The commenter is referred to the preamble discussion found in Unit IV that deals with the establishment of a publicly accessible internet site by the owner or operator of the CCR landfill or surface impoundmen t for reporting the regulatory requirements of the rule . This section also discusses the basis for this requirement as well as other reporting and notification requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09358

- 18 

### Organization 1 

### : Interstate Power a nd Light Company (IPL) and Wisconsin Power and Light Company (WPL) 

### Commenter 1 : Kathleen A. Lipp Commenter Type: Electric Utility Company
Classification: Substantive869

Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 7.1.2.6 

### Comment Excerpt Text:

8. Provisions for Notifications

- WPL completes required compliance activities, analyzes data, prepares reports, and provides data and reports to the WDNR. All of these materials are public information and have been, and continue to b e, accessible to the public. WPL is familiar with the public's ability to access this information, especially as agencies adapt to providing such information electronically. WPL provides annual certification statements to the WDNR through various program r equirements. If there are compliance issues that require additional communication, WPL self reports these to agency staff via documentation available to the general public. WPL objects to the duplicative effort that the EPA is proposing to provide
informat ion related to CCR management activities on a newly developed company web site. EPA should look to the existing WDNR program for guidance on development of a successful functioning CCR management program which includes information access by the general pub lic. In conclusion, WPL is supportive of the proper management for CCRs and believes that the state of Wisconsin has a program which the EPA should examine much closer as a model of a state program which could be easily modified to incorporate the objectiv es of the EPA proposed CCR management program. This model would be based on Subtitle D program requirements as proposed by EPA with several variations which allow some flexibility for companies in designing and operating CCR management units and selecting beneficial use for CCRs based on standards that are protective of human health and the environment.

Response: The Agency acknowledges and appreciates this comment. The commenter is referred to the preamble discussion found in Unit IV that deals with the establishment of a publicly accessible internet site by the owner or operator of the CCR landfill or surface impoundment for reporting the regulatory requirements of the rule . This section also discusses the basis for this requirement as well as other rep orting and notification requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09728

- 18 

### 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: h. Providing raw data or compliance items on a company website too easily draws frivilous lawsuits from lay person and non

- governmental organizations that misinterpret data or

m isunderstand the documentation.

Response: The Agency acknowledges and appreciates this comment. The commenter is referred to the preamble discussion found in Unit IV that deals with the establishment of a870

publicly accessible internet site by the owner or operator of the CCR landfill or surface impoundment for reporting the regulatory requirements of the rule . This section also discusses the basis for this requirement as well as other reporting and notification requirements.



### Comment Numbe r: EPA

- HQ

- RCRA

- 2009

- 0640

- 11733_K

- 159

- 4 

### Organization 1 

### : JEA 

### Commenter 1 : Matt McClure Commenter Type: Electric Utility Facility
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.5 4.1.3 

### Comment Excerp t Text: Regarding the Subtitle D or D Prime approaches, JEA would point out that the one

- size fits all national standards being proposed do not allow enough flexibility for utilities to operate efficiently, and using corporate web sites as an enforcement tool would seem to be a path toward unproductive litigation. More flexibility is needed in the framework of the regulations for equally protective but different liner systems, groundwater monitoring programs and zones of discharge, and processing practices , such as slurry systems where the CCRs react and solidify within a short time of conveyance.

Additionally, the Subtitle D approach should not penalize states like Florida that are already regulating the beneficial use of CCRs as well as the disposal of C CRs at new facilities under a quasi Subtitle D approach. JEA urges EPA to more carefully consider a statutory path toward a regulatory framework tailored to CCRs that follows neither Subtitle C nor D. JEA believes that rather than using a somewhat overreac hing approach, there would be congressional support to provide EPA the authority to approve state programs that meet EPA parameters, allowing States like Florida to manage the issue in a way that best serves its citizens, while retaining
enforcement author ity over the states that do not.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The commenter is referred to Unit IV of t he preamble for a discussion o f EP A’s 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.

Section 4.4.9

- Financial assurance (35210) Total Number of Submissions: 2

To tal Number of Comments: 2871



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 60 

### 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: 3.7.6 

### Comment Excerpt Text: Regardless of the instrument or avenue for financial assurance, it is essential that the financial assurance remain in effect into perpetuity as that is the period during which the disposed CCRs pose potential t hreats to human health and the environment.

Response: As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D

alternative di d not include proposed financial assurance responsibility requirements . EPa further stated that any such requirements would be proposed separately. Consistent with the proposal, EPA is not promulgating any financial assurance requirement under this subtitle D

rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06852

- 10 

### Organization 1 

### : Green Delaware 

### Commenter 1 : A lan Muller Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.7.6 

### Comment Excerpt Text:

Financial Assurance

Is inherently required under Subtitle C but not under D.

Response: As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include proposed financial assurance responsibility requirements. EPa further stated that any such requirements would be proposed separ ately. Consistent with the proposal, EPA is not promulgating any financial assurance requirement under this subtitle D

rule.

Section 4.4.9.1

- EPA solicits comment on whether FA should be a key program element under a Subtitle D approach (35134, 35148, 352 24) and how FA requirements apply to SIs that continue to receive CCRs after rule’s effective date (35148

- 35149) Total Number of Submissions: 20 Total Number of Comments: 30872



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03444

- 39 

### Organization 1 

### : Kansas Department o f 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: As an associated part to this rulemaking process, a separate regulatory subpart could/should be incorporated in Parts 257 and 258 to cover financial assurance requirements for closure, post

closure care, and corrective action.

Response: The Agency acknowledges and appreciates this comment. As discussed i n the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include proposed financial assurance responsibility requirements. EP A further stated that any such requirements would be proposed separately. Consistent with the pr oposal, EPA is not promulgating any financial assurance requirement under this subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06040

- 8 

### Organization 1 

### : Longview Power, LLC 

### Commenter 1 : Joseph R. Douglass Commenter Type: Electric Utility Facility
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

EPA solicited comment on whether financial assurance should be a key element under a Subtitle
D approach. This issue is not specific to Subti tle D facilities that manage CCR's. This issue
should be addressed on a broader basis for all Subtitle D facilities, rather

- than within a rulemaking that addresses certain specific CCR's.

Response: As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include proposed financial assurance responsibility requirements. EPa further stated that any such requirements would be proposed separately. Consistent with the proposal, EPA is not promulgating any finan cial assurance requirement under this subtitle D

rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 29 

### Organization 1 

### : We Energies 

### Commenter 1 : Art Covi873

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



### Comment Excerpt Text: COMMENT: Financial assurance is already required under Wisconsin Statutes Chapter 289.41 and Michigan Public Acts 451. We believe that these state administered regulations provide appropriate financial assurance and should be included as part of federal standards for state

programs.

Response: The Agency acknowledges and appreciates this comment. As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include proposed financial assurance responsibility requirements. EP A further stated that any such requirements would be proposed separately. Consistent with the proposal, EPA is not promulgating any financial assurance requirement under this subtitle D ru le.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 92 

### 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 suggests EPA to issue financial assurance regulations under Subtitle D authority similar to that for MSW landfills.

Response: The Agency acknowledges and appreciates this comment. As discussed in th e proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include proposed financial assurance responsibility requirements. EP A further stated that any such requirements would be proposed separately. Consistent with the propos al, EPA is not promulgating any financial assurance requirement under this subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 95 

### Organization 1 

### : Kentucky Department for Environmental Protection 

### Commenter 1 : R. Bruce Scott874

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



### Comment Excerpt Text: The Commonwealth believes that owners or operators of surface impoundments closing by one deadline, such as five years, sho uld be exempt from bonding while a second group using a latter deadline, such as ten years, should be required to fully cover closure and monitoring costs in case of insolvency. In each case, the proper closure and post

- closure by the owner is assumed.

Re sponse: The Agency acknowledges and appreciates this comment. As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include proposed financial assurance responsibility requirements. EP A further stated t hat any such requirements would be proposed separately. Consistent with the proposal, EPA is not promulgating any financial assurance requirement under this subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 26 

### 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:
Other Sections: 4.4.5 4.4.7.7 4.4.8.1 

### Comment Excerpt Text: CCR should be disposed into solid waste landfills meeting the RCRA Subtitle D design criteria. This includes groundwater monitoring, post

- closure monitoring and maintenance and financial
assurance unless the CCR can be used as structural fill. Where CCR can be used as structural fill, the fill area should have a synthetic liner, a leachate collection system and groundwater monitoring unless the area of the structural fill can be demonstrated to have geologic conditions that are protective of both grou ndwater and surface water within a 1,000

- foot radius. Properties where CCR has been placed as structural fill should have notification placed in the deed.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 28 

### 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:875

Other Sections: 4.6.1 4.4.8 

### Comment Excerpt Text: Landfills receiving CCR that do not meet RCRA Subtitle D requirements should only be allowed to continue accepting CCR for two years following the effective date of the Final EPA CCR Rule provided certain conditions are met. Those conditions should include a legally binding commitment from the landfill owner/operator to properly close the landfill with a RCRA Subtitle D landfill cap; closure and post

- closure monitoring requirements, including groundwater

mo nitoring; and financial assurance sufficient to fund closure and post

- closure requirements, as well as environmental investigation and remediation in the event that becomes necessary.

Response: The Agency acknowledges and appreciates the comment.



### Com ment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 29 

### 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:
Other Sections: 4.4.4.1 4.4.5.1 4.4.6 4.4.7.1 4.4.8 

### Comment Excerpt Text: New landfills and expansion of existing landfills to be used for the disposal of CCR should be required to meet RCRA Subtitle D municipal solid waste and design crite ria including geologic stability assessment, engineering design criteria, operational standards, groundwater monitoring, quarterly inspections, closure (including cap), post

- closure monitoring and maintenance,
financial assurance and notification of CCR di sposal on the property deed. A seismic stability analysis should be performed as part of the initial site suitability analysis. The landfill or landfill expansion should be designed to have a structural stability safety factor of 1.5 and a seismic safety f actor of 1.5.

Response: The commenter is referred to Unit VI of the preamble for a discussion of the technical requirements of the rule and the rationale behind each of the requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 30 

### 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:
Other Sections: 4.4.5.2 4.4.5.1 4.4.7.4 4.4.8 .2 

### Comment Excerpt Text: Surface impoundments receiving CCR for treatment or disposal should be regulated from initial876

design through completion of post

- closure monitoring requirements. For existing CCR surface impoundments there should be two categories; (1) CCR waste surface impoundments to be used for no more than five additional years from the effective date of the Final EPA CCR Rule, and (2) CCR surface impoundments that will be used five years after the effective date of the EPA
CCR Final Rule.

(1) Regulations for existing CCR surface impoundments to be closed within five years of the effective date of the Final EPA CCR Rule should include structural analysis with repair/improvements required to meet a dam safety factor of 1.2. Additional requirement s should include inspections quarterly, installation of groundwater monitoring wells, semiannual groundwater monitoring, closure plan, post

- closure monitoring and maintenance and financial assurance in an amount sufficient to cap the surface impoundment an d to perform environmental investigation and cleanup should the surface impoundment fail or have releases to groundwater and surface water. The CCR surface impoundment owner should be required to submit a statement committing to closure of the surface impo undment within five years and acknowledge the responsibility to comply with (2) below should the surface impoundment not be closed on
schedule.

(2) Regulations for existing CCR surface impoundments to be operated for more than five years
after the effecti ve date of the Final EPA CCR Rule should include a structural analysis with repair/improvements required to meet a dam safety factor of 1.5. These surface impoundments should be retrofitted with a synthetic liner to prevent failure migration of CCR contami nants into ground water. The CCR surface impoundment owner should be required to obtain a solid waste processing/disposal permit following the RCRA Subtitle D public participation process. Additional recommended requirements are quarterly inspections, inst allation of groundwater monitoring wells, semi

- annual groundwater sampling, annual estimation of remaining life, closure plan with cap, post

- closure monitoring and maintenance plan and financial assurance sufficient to perform environmental investigation a nd clean up should the surface impoundment fail or release contaminants to groundwater or surface water.

Response: EPA acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a discussion of the technical requir ements of the rule and the rationale behind each of the requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 31 

### 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:
Other Sections: 4.4.4.1 4.4.5.1 4.4.5.2 4.4.7.1 4.4.8.2 

### Comment Excerpt Text: New CCR surface impoundments should be permitted following the EPA Subtitle D criteria for877

solid waste landfills. The regulations should include:

- Public Notice of intent to construct.

- Demonstration of suitable geologic conditions for construction.

- An engineering design which includes a geologic buffer, synthetic liner, leachate c ollection system, groundwater monitoring system with a minimum of four wells, buffer zones, construction with a dam safety factor of 1.5, estimated disposal capacity of the surface impoundment, seismic analysis and seismic safety factor of 1.5, closure pla n, post

- closure monitoring and maintenance plan and financial assurance in an amount sufficient to complete environmental investigation and cleanup should the surface impoundment fail or have releases to groundwater and/or surface water.

- The initial plans should indicate whether the surface impoundment will be used for CCR treatment or for waste treatment and CCR disposal.

Response: EPA acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a discussion of the technical requirements of the rule and the rationale behind each of the requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 57 

### Organization 1 

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

### Commenter 1 : Paul L. Sloan Commenter Type: Stat e Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.4.5.2 4.4.5.1 4.4.7.4 4.4.8.2 

### Comment Excerpt Text: For closing surface impoundments, the CCR generator must make infrastructure changes to handle and transport CCR before the surface impoundment can be closed. The structural integrity of surface impoundments must be evaluated by an independent professional and the owner/operator must be required to repair and improve the structural integrity of the surface impoundment.

EPA should promulgate rules that provide two opportunities for existing surface impoundments; (1) short term use and closure or (2) long term use with design modifications. Surface Impoundments to be used for five ye ars or less after rule promulgation and then closed should be required to have a structural integrity analysis with repairs and improvements made providing a dam safety factor of 1.2. Semi

- annual inspections, groundwater monitoring, financial assurance,
cl osure plans, and post closure monitoring and maintenance should be required.

For surface impoundments to be used for longer than five years, all requirements in the paragraph above apply as well as a requirement to obtain a permit through the public
notic e/public hearing/public comment process. For this category, the surface impoundment should be retrofitted with a synthetic liner.

All new surface impoundments must be permitted similarly to a municipal solid waste landfill.878

Response: EPA acknowledges an d appreciates this comment. The commenter is referred to Unit VI of the preamble for a discussion of the technical requirements of the rule and the rationale behind each of the requirements.

EPA notes however, a s discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include proposed financial assurance responsibility requirements. EPA further stated that any such requirements would be proposed separately. Consistent with the proposal, EPA is not promulgating any financial assurance requirement under this subtitle D

rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06410

- 11 

### Organization 1 

### : Commenter 1 : Anonymous Commenter Type: Anonymous
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.7.6 

### Comment Excerpt Text: Financial assurance is needed for the continued maintenance of the facility during and after operations. Maintenance would be needed to maintain infrastructure integrity. The facility would
also n eed financial assurance for continued environmental monitoring. Other options besides retrofitting can be used to mitigate environmental issues that may arise during or after facility operations. Financial assurance would need to be substantial enough to i mplement mitigation measures effectively to resolve any environmental issues.

Response: The Agency acknowledges and appreciates this comment. As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include proposed financial assurance responsibility requirements. EPA further stated that any such requirements would be proposed separately. Consistent with the proposal, EPA is not promulgating any financial assurance requirement under this subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06410

- 64 

### Organization 1 

### : Commenter 1 : Anonymous
Com menter Type: Anonymous
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.7.6879



### Comment Excerpt Text: Financial assurance is needed by any facility regardless of the regulatory approach. Maintenance
will continue to be needed at facilities after closure.

Response: The Agency acknowledges and appreciates this comment. As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include proposed financial assurance responsibility requirements. EPA further stated that any such requirements would be proposed separately. Consistent with the proposal, EPA is not promulgating any financial assurance requirement under this subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06838

- 24 

### 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: 4.4.9.3 

### Comment Excerpt Text: Minnesota believes financial assurance must be required for closure, postclosure, and contingency action for these facilities. Requiring financial assurance should be a key program element under the RCRA Subtitle D approach. If facilities cannot be require d to maintain adequate financial assurance under Subtitle D, funding should be made available, whether through CERCLA or other means, to address mismanagement of CCRs.

Minnesota currently requires all CCR surface impoundments to obtain financial assuranc e for postclosure care prior to closing the facility. Therefore, surface impoundments that cease receiving CCRs prior to the effective date of this rule, will have financial assurance.

Response: The Agency acknowledges and appreciates this comment. As di scussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include proposed financial assurance responsibility requirements. EPA further stated that any such requirements would be proposed separately. Consistent wi th the proposal, EPA is not promulgating any financial assurance requirement under this subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06866

- 21 

### Organization 1 

### : Washington State Department of Ecology 

### Commenter 1 : Ken Zarker for K. Seiler Commenter Ty pe: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:880

Other Sections: 4.4.9.3 

### Comment Excerpt Text: Washington state solid waste rules require financial assurance for limited purpose landfills such as the coal ash landfill. These requirements are similar in most respects to RCRA requirements, but do not have the enforceability available under a RCRA subtitle C permit. It is important that financial assurance is a key program element under a subt itle D approach, as long as workable regulatory mechanisms are in place to enforce it.

Response: The Agency acknowledges and appreciates this comment. As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include proposed financial assurance responsibility requirements. EPA further stated that any such requirements would be proposed separately. Consistent with the proposal, EPA is not promulgating any financial assurance requirement under this subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 73 

### 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 believes that if a Subtitle D approach is adopted, financial assurance similar to those in 40 CFR 258 should be included in the regulation.

Response: The Agency acknowledges and appreciates this comme nt. As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include proposed financial assurance responsibility requirements. EPA further stated that any such requirements would be proposed separately. Con sistent with the proposal, EPA is not promulgating any financial assurance requirement under this subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 39 

### Organization 1 

### : Ohio Environmental Protection Agency 

### Commenter 1 : Chris Korleski Commenter Type : State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.7 4.4.9.3 

### Comment Excerpt Text:881

Ohio EPA supports establishment of CCR financial responsibility requirements for closure and post

- closure care consistent with what is required for RCRA subtitle D municipal solid waste landfills. Ohio EPA suggests that a separate regulatory subpart could/ should be incorporated in Parts 257 and 258 to cover financial assurance requirements for closure, post

- closure care, and
corrective action.

Ohio law excludes coal combustion ash from the definition of solid waste leaving 53 CCR disposal sites regulated under Ohio’s surface water program. Ohio regulations do not include financial responsibility requirements for these 53 CCR sites which includes 42 ash ponds. Ohio regulates an additional four CCR landfills disposing of flue gas desulfurization sludge under the state solid waste program. Ohio solid waste regulations do require financial assurance for closure and post

- closure for these four landfills. These four landfills have established financial assurance using the corporate test consistent with RCRA subti tle D municipal solid waste landfill requirements.

Ohio EPA has attempted to establish consistent and appropriate regulation of CCR disposal ash ponds and landfills as part of a broader 2006 effort to address regulation of industrial disposal ponds and l andfills. This 2006 effort sought to establish comprehensive design, operational, and monitoring requirements for both dry landfills and wet impoundments based upon the characteristics of the waste to be disposed. This included financial assurance for clos ure and post

- closure care. Ohio EPA’s efforts specific to establishing consistent regulation of CCR disposal facilities has been hampered in part by an Ohio law that excludes coal combustion ash
from the Ohio definition of solid waste. Given this situation , Ohio EPA would support Subtitle D development of federal CCR financial responsibility requirements for closure and post

- closure care applicable in those states that do not have regulatory established CCR financial responsibility requirements.

Response: The Agency acknowledges and appreciates this comment. As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include proposed financial assurance responsibility requirements. EPA further stated that any such requirements would be proposed separately. Consistent with the proposal, EPA is not promulgating any financial assurance requirement under this subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08248

- 15 

### Organization 1 

### : Institute for Policy Integ rity 

### Commenter 1 : Jason A. Schwartz Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: If EPA Elects to Regulate CCRs under Subtitle D, a Well

- Designed Financial Assurance Option Must Be Implemented882

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”) allows EPA to require facilities to “establish an d maintain evidence of financial responsibility consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances.” [Footnote 68: 42 U.S.C. § 9608(b)(1).] The preamble “s olicits comments on whether financial assurance [under CERCLA] should be a key program element under a subtitle D approach, if the decision is made to promulgate regulations under RCRA subtitle D.” [Footnote 69: 75 Fed. Reg. at 35,224.]

While all evidence points to Subtitle C as the more appropriate vehicle for regulating CCRs, if the agency instead elects to use Subtitle D, EPA should then design and implement a financial assurance program under CERCLA. As noted in the preamble, this process has already b een started by the advanced notice of proposed rulemaking on “Identification of Additional Classes of Facilities for Development of Financial Responsibility Requirements Under CERCLA Section 108(b).” [Footnote 70: 75 Fed. Reg. 816.] While likely inferior t o regulation under Subtitle C (which comes along with its own financial assurance requirements), financial assurance is one way to ensure that regulated entities take appropriate actions under Subtitle D. Liability for the
full social costs of an adverse e vent is an alternative method for ensuring that the external costs are taken into account by the entities that are creating the risk. [Footnote 71: See, e.g., A. Mitchell Polinsky & Steven Shavell, The Uneasy Case for Product Liability, 123 HARV. L.
REV. 1 437 (2010).] This comes up most often in the context of tort law. Professors Polinsky and Shavell identify three potential benefits of liability: inducing firms to increase safety, improving
economic decision

- making by causing prices to reflect risks, and compensating victims for their losses. [Footnote 72: Id. at 1438.] In theory, this method can achieve the same results as a regulation which maximizes net social benefits. However, one real

- life flaw in this theory is that any private party who cannot pay for the full magnitude of the harm will not take adequate steps to mitigate overall risks. [Footnote 73: Steven Shavell, Liability for Harm Versus Regulation of Safety, 13 J. LEGAL STUD. 357, 360 (1984).] This will occur whenever the potential liability of a party is higher than the assets of a party. [Footnote 74: Id. at 360

- 61.] A well

- designed financial assurance program is one way of guaranteeing that this will not occur.

However, careful attention should be paid to any regulations on the topic. These regulations should be structured so that the right behavior is incentivized. In particular, EPA needs to avoid a potential moral hazard problem. If regulated entities are protected from future cleanup costs, they may not take appropriate precautions to av oid harmful releases of CCRs

Response: The Agency acknowledges and appreciates this comment. As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include proposed financial assurance responsibility req uirements. EPA further stated that any such requirements would be proposed separately. Consistent with the proposal, EPA is not promulgating any financial assurance requirement under this subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08251

- 11 

### Organization 1 

### : Massachusetts Department of Environmental Protection 

### Commenter 1 : James C. Colman883

Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 10.2.2.1 10.2.2.2 4.4.5.1 4.4.7 4.4.8 4.2.2 4.2.4 

### Comment Excerpt Text: MassDEP recommends that the final EPA regulations include the following critical provisions: • National minimum design and performance standards for disposal in landfills that include requirements for a composite liner, leachate collection, groundwater monitoring and final closure

Response : T he commenter is referred to Unit VI of the preamble for a discussion of the technical regulatory requirements of the rule.

• Regulation of beneficial uses of CCR, including potential exemption from further regulation for certain encapsulated uses of CCR in cement products or similar encapsulated uses in products • State or federal compliance assurance for beneficial uses to ensure that such uses will be
prote ctive of public health and the environment

Response: The commenter is referred to Unit IV of t he preamble for a discussion o f EPA’s 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.

• Financial assurance for landfill closure and post

- closure monitoring and mainte nance

Response: The Agency acknowledges and appreciates this comment. As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include proposed financial assurance responsibility requirements. EPA further stated that any such requirements would be proposed separately. Consistent with the proposal, EPA is not promulgating any financial assurance requirement under this subtitle D rule.

• Allowance for states to be more stringent than the final EPA rules
• Cl ear enforcement authority and permitting authority for states

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented a nd enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08251

- 42 

### Organization 1 

### : Massachusetts Department of Environmental Protection 

### Commenter 1 : James C. Colman Commenter Type: State Government
Classification: Substantive Comment Category:884

Current Task: Examine Context Assi gned/Due:
Other Sections: 4.4.9.3 

### Comment Excerpt Text: MassDEP recommends that financial assurance be a part of the Subtitle D approach to ensure that landfills are properly closed and maintained after closure during the post

- closure period.
Financial assurance has great value in helping to ensure that a landfill, once no longer in use, continues to be properly monitored, capped and closed. By setting aside funds for monitoring and closure, the owner/operator has a stake in ensuring that closure and pos t

- closure care are properly addressed and the state is ensured that the funds will be available, if needed, for monitoring and closure after waste is no longer coming in to the landfill or if the state needs to take over the closure and/or monitoring of a site should the owner default.

MassDEP does not allow financial tests for local governments that own and operate landfills. MassDEP requires that funds be set aside in "Enterprise Accounts", a special type of financial mechanism established specifically for municipalities. While a local government is not likely abandon a landfill, it may argue that it does not have sufficient funds available to ensure closure and monitoring of closing landfills. A financial test does nothing to ensure that funds are actua lly available and will be spent to monitor, cap and close a landfill at the end of its useful life. MassDEP does not view financial assurance as an "extra" cost; it is one of the essential costs of doing business for those who decide to operate a landfill that must be factored in as an annual operating expense.

Response: The Agency acknowledges and appreciates this comment. As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include proposed financia l assurance responsibility requirements. EPA further stated that any such requirements would be proposed separately. Consistent with the proposal, EPA is not promulgating any financial assurance requirement under this subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08253

- 34 

### 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: 4.4.9.2 

### Comment Excerpt Te xt:
15 Financial Assurance: We believe the states in which we operate CCR disposal units already have appropriate financial assurance mechanisms in place, and further federal programs under RCRA

- D are not necessary
for electric utilities. If EPA chooses t o pursue new financial assurance requirements for CCRs disposal units under RCRA

- D, the agency must acknowledge the rate

- recovery capability of regulated public utilities and provide an re?ray of flexible alternatives to minimize the burden to

owners, oper ators and electric customers. RCRA

- C is not a workable regulatory framework885

under any circumstance.

We do not believe that financial assurance requirements under CERCLA 108(b) should be a key agency focus. We do not believe that financial assurance requi rements for inactive CCR impoundments is an issue of significant concern for regulated public utilities, given the funding sources currently available. State public utility commissions have consistently authorized appropriate funding for clean

- up or closur e of these types of facilities, as well as other legacy concerns such as remediation of old manufactured gas plants or demolition of retired power plants.

Response: The Agency acknowledges and appreciates this comment. As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include proposed financial assurance responsibility requirements. EPA further stated that any such requirements would be proposed separately. Consistent with the proposal, EPA is not promulgating any financial assurance requirement under this subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08288

- 18 

### Organization 1 

### : Oklahoma Department of Env ironmental Quality 

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



### Comment Excerpt Text: DEQ fully supports incorporating financial assurance criteria, equivalent to the MSWLF criteria, for CCR disposal sites under the Subtitle D option.

Response: The Agency acknowledges and appreciates this comment. As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include proposed financial assurance responsibility requirements. EPA further stated that any such requirements would be proposed separately. Consistent with the proposal, EPA is not promulgating any financial assurance requirement under this subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08787

- 44 

### 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:886



### Comment Excerpt Text: ASTSWMO supports financial assurance as a key program element under the Subtitle D approach.

Response: The Agency acknowledges and appreciates this comment. As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include proposed financial assurance responsibility requirements. EPA further stated that any such requirements would be proposed separately. Consistent with the proposal, EPA is not promulgating any financial assurance requirement under this subtitle D rule.



### C omment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08855

- 3 

### Organization 1 

### : Colstrip Energy Limited Partnership (CELP) 

### Commenter 1 : R. Lee Roberts Commenter Type: Electric Utility Facility
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

One Size Does Not Fit All as to Financial Assurances Not only does the "one size fits all" approach fail to recognize the effect ofthe difference
between PCU ash and FBC ash on such issues as liner and leachate collec tion system requirements, but it also fails to recognize the difference in the context of financial assurance requirements. Apart from the effect of systemic differences between utilities and private energy producers and/or qualified facilities, the differ ence between the effect of landfilling of PCU ash and FBC ash is dramatic. The ash disposed of in CELP's landfill had, when last core tested, a range of unconfined compressive strength from 3,527 to 3,857 pounds per square inch, which is
similar to low

- str ength concrete, and has had zero effect on groundwater under or around the landfill in over 20 years of use. To require anyone who can demonstrate that there has been no leachate from their landfill for 20 years to post a bond or provide other forms of fin ancial assurance for 30 years of post

- closure monitoring is perhaps beyond the zone of reasonableness. CELP suggests that any rules regarding financial assurance adopted by the EPA take into consideration the nature ofthe facility (impoundment vs. landfill , PCU vs. FBC), the nature of the ash (pozzolanic v. non

- pozzolanic, Proctor Maximum Density Test Results, hydraulic conductivity, ash strength, etc.), and the site

- specific facts and conditions (history of site, monitoring well sampling, results over time , etc.), and result in a flexible approach related to
site

- specific risk indicia. Where an entity can demonstrate that its landfill upon closure will have no reasonable probability of adverse effects on health or the environment, financial assurance requir ements should be waived or minimal in both scope and duration. Where states have been authorized by EPA to administer RCRA, the states should also have the ability to establish financial assurance requirements on a case

- by

- case basis in accordance with rea sonable guidelines established by the EPA. The fact that EPA may not under subtitle D have the ability to require states to apply EPA guidelines does not prohibit EPA from suggesting guidelines which887

most states could nevertheless be expected to follow.

R esponse: The Agency acknowledges and appreciates this comment. As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include proposed financial assurance responsibility requirements. EPA further stated that any such requirements would be proposed separately. Consistent with the proposal, EPA is not promulgating any financial assurance requirement under this subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09282

- 2 

### Organization 1 

### : North Carolina Depa rtment of Environment and Natural Resources 

### Commenter 1 : Dexter R. Matthews Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.5 4.2.2 

### Comment Excerpt Text: NCDWM proposes that EPA regulate CCRs under Subtitle D of RCRA with modifications to the current proposal. Rule changes

-- and if necessary statutory changes

-- should be made to make federally approved state permitting programs the foundation for regulati ng CCR disposal. EPA should also provide financial incentives for states to implement federal criteria through state solid waste programs.

A system of prior approval exists in most, if not all, states that will ensure greater consistency
across the count ry than the current self

- implementing proposal under Subtitle D. Regulation under Subtitle D should embrace the existing state permitting programs. A federal approval role would ensure that those permitting programs meet or exceed minimum national criteria for CCR disposal. The implementation schedule for a final rule under Subtitle D would need to allow time for states to make necessary changes in existing state rules and statutes to incorporate federal
criteria.

One element that should be added to regul ation under Subtitle D is a requirement for financial assurance. Financial assurance for closure, post closure care, and corrective action should be included in the final rule as a mechanism to ensure that funds will be provided by owner and operators to c arry out these activities.

With an enhanced regulatory system under Subtitle D that recognizes state permitting programs and provides financial incentives for states to implement federal criteria, EPA can address the risks of disposal of CCRs without ris k of damaging existing reuse and recycling markets.

Response: The Agency acknowledges and appreciates this comment. As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include proposed financial ass urance responsibility requirements. EPA further stated that any such888

requirements would be proposed separately. Consistent with the proposal, EPA is not promulgating any financial assurance requirement under this subtitle D rule.



### Comment Number: EPA

- HQ

- R CRA

- 2009

- 0640

- 09282

- 21 

### Organization 1 

### : North Carolina Department of Environment and Natural Resources 

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



### Comment Excerpt Text: EPA should include regulations requiring financial assurance to cover the costs of future corrective actions, closure and post

- closure care.

Response: The Agency acknowledges and appreciates this comment. As discussed in the

prop osed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include proposed financial assurance responsibility requirements. EPA further stated that any such requirements would be proposed separately. Consistent with the proposal, EP A is not promulgating any financial assurance requirement under this subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09284

- 59 

### 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 has had financial assurance requirements in effect since 1988 for all solid waste landfills, including industrial landfills. The financial assurance requirements address closure, post

- closure care, groundwater monitoring, and corrective action. Due to the similarity of the proposed CCR landfills to municipal solid waste and industrial landfills, financial assurance provisions sh ould be adopted if the Subtitle D approach is undertaken. Failure to adopt financial assurance requirements would not be in the best interests of the states. If a facility was abandoned then states could become liable for the costs of closure, post

- closure , and/or
corrective action.

Response: The Agency acknowledges and appreciates this comment. As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include889

proposed financial assurance responsibility req uirements. EPA further stated that any such requirements would be proposed separately. Consistent with the proposal, EPA is not promulgating any financial assurance requirement under this subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09817

- 2 

### Org anization 1 

### : RT Environmental Services, Inc. 

### Commenter 1 : Gary R. Brown, P.E. Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.5 

### Comment Excerpt Text:

Recommendations I make are:

- Except in site

- specific surface circumstances, where storage is short

- term (no more than a year or two by cell or segment), the long

- term storage and/or disposal of wet CCR material, should be banned nationally.

- Disposal plans should be req uired within one year, to drain and stabilize current CCR wet/semi

wet surface impoundments and dumps, with financial assurance to be placed, for all existing surface impoundments, quasi landfill/surface impoundments, and facilities where material will

rem ain, near the water table, or in close proximity to surface waters.

Response: The Agency acknowledges and appreciates this comment. As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include

propos ed financial assurance responsibility requirements. EPA further stated that any such requirements would be proposed separately. Consistent with the proposal, EPA is not promulgating any financial assurance requirement under this subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09817

- 4 

### Organization 1 

### : RT Environmental Services, Inc. 

### Commenter 1 : Gary R. Brown, P.E. Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.5 4.4.5.2.1 

### Comment Excerpt Text: Regardless of the classification of the material, it is my opinion that the Agency can take several basic steps, as follows:890

- Uncovered coal ash materials where there is no written approved "engineering plan", or where

m aterials are present in a wet state with a total depth greater than 20 feet should be declared "open dumps", unless financial closure is posted, and engineering plans are presented to and approved by the state Agency, to convert to dry operation, in a reas onable time period.

- The states should be given one year to indicate how CCR materials can be managed under their waste program(s), as CCRs have been effectively so managed in many states.

- CR materials do and can present a significant environmental ri sk, if they are managed in inappropriate ways. My opinion is the Agency should force a national review of all individual sites, and allow the materials to be managed only in a dry state for disposal and ban disposal placement of CCR liquids . All materials placed for disposal must pass the Agency's long

- used "paint filter" test.

- This should be can and should be given prompt attention and go forward, in a reasonable timeframe, so as not to interfere with or delay the successful beneficial use of CCR mater ials, which can be completed in an environmentally sound manner. Beneficial use regulatory changes, if needed, can proceed on a separate track.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10495

- 61 

### 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:
2. Subtitle D Standa rds Cannot Require Owners and Operators of Coal Ash Disposal
Facilities to Maintain Financial Assurance

EPA’s proposed subtitle D standards do not include any requirement for owners or operators of coal ash disposal facilities to maintain financial assur ance (demonstrate adequate financial resources) sufficient to cover closure, post

- closure care, necessary clean up and liability from facility operations. Yet according to EPA, financial assurance requirements “protect public health and the environment by promoting the proper and safe handling of hazardous materials and protecting against a liable party defaulting on closure or clean

- up obligations.” [Footnote 344: U.S. EPA, Compliance and Enforcement National Priority: Financial Responsibility Under
Enviro nmental Laws, 1 (2005).] The absence of financial assurance can “place the public at risk because of the potential financial inability to close or clean up the site.” [Footnote 345: Id. at 2.].

Furthermore, according to the EPA, “having the financial wher ewithal to perform closure and/or891

cleanup is critical to protecting human health and the environment from toxic and hazardous waste and substances that are polluting the land, air, and water.” [Footnote 346: Id.]. The EPA explains that “financial responsib ility requirements achieve this protection by: (1) promoting the proper handling of hazardous and toxic waste and substances; (2) ensuring that funds will be available to address contamination; (3) preventing the shifting of clean

- up costs from the

respons ible party to the taxpayer or other parties; and (4) making facilities and land available to the public for reuse.” [Footnote 347: Id.].

EPA considers financial assurance regulations an essential component of its hazardous waste compliance program, as evi denced by EPA’s 2003 “Enforcement Alert,” which specifically addresses RCRA financial assurance requirements. [Footnote 348: U.S. EPA, Office of Regulatory Enforcement, Enforcement Alert, Vol. 6, No. 2 (April 2003).]. The Alert called
financial assurance r equirements a “fundamental compliance obligation” and stated the “failure to comply with financial assurance requirements puts human health and the environment at risk.” [Footnote 349: Id.].

At least one court has recognized the important role played by f inancial assurance regulations in forcing waste

- handling facilities to employ better operation and management practices. In Safety

Kleen, Inc., (Pinewood) v. Wyche , the Court held that the South Carolina hazardous waste facility financial assurance regulat ions (equivalent to the federal RCRA regulations) were exempt from the federal bankruptcy law’s automatic stay because the requirements were part of the State’s “police and regulatory power.” [Footnote 350: 274 F.3d 846, 865 (4th Cir. 2001). The Court expl ained: "The incentive for safety is obvious: the availability and cost of a bond will be tied directly to the structural integrity of a facility and the soundness of its day

- to

- day operations. When the EPA promulgated its financial assurance regulations..., it spelled out how the regulations would promote environmental protection at active hazardous waste facilities. Specifically, the EPA emphasized that the financial assurance requirements would give landfill owners and operators “an incentive to locate, des ign, and operate facilities to minimize closure and post

- closure costs” and to “improve operating procedures and reduce the risk of accidents.” Standards Applicable to Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities; Fin ancial Requirements, 47 Fed. Reg. 15032, 15044

- 45 (Apr. 7, 1982) ... To put it more bluntly, sloppy “design and operating procedures ... are more likely to be avoided” with the financial assurance requirements and the resulting incentive to reduce bond costs .]. The Court of Appeals found that financial assurance regulations serve the primary purpose of deterring environmental misconduct by promoting the safer design and operation of hazardous
waste facilities.

Furthermore, in a federal register notice last January, EPA set forth in detail the rationale behind imposing financial assurance requirements on the electric utility sector. [Footnote 351: 75 Fed. Reg. 816.]. In that notice, EPA acknowledged that the electric power generation, transmission
and distrib ution industry was “the sector reporting the second

- largest quantity of on

- site release of hazardous substances.” [Footnote 352: Id. at 821.]. Specifically, EPA noted that

"this sector reported 161 million pounds of on

- site releases of hazardous substanc es or approximately 7.5 percent of the total on

- site releases of hazardous substances by U.S. industry reporting to TRI. Of this total, 93.8 percent (or approximately 150 million pounds) was released892

from fossil fuel electric power generation, primarily to land, with additional on

- site releases to air and surface water." [Footnote 353: Id. at 829.].

In addition to the enormous volume of releases from coal

- fired power plants, EPA pointed to the severity of the damage resulting from releases of hazardous sub stances and the high cost of cleanup. EPA described the numerous documented damage cases, including four National Priority List sites. [Footnote 354: Chisman Creek, VA; Salem Acres, MA; Lemberger Landfill, WI and US Department of Energy Oakridge Reservatio n, TN.]. The Agency noted

"The severity of the consequences impacting public health and the environment as a result of releases and exposure of hazardous substances posed by the Electric Power Generation, Distribution, and Transmission industry is eviden t in the large costs associated with past and estimated future costs necessary to protect public health and the environment through what are often extensive and long

- term remediation efforts. That is, these facilities release hazardous
substances which hav e, in some instances, resulted in contamination that requires long

- term management and treatment. Remediation of these sites, therefore, has been quite costly. [Footnote 355: 75 Fed. Reg. 829

- 30.].

Despite the Agency’s acknowledgement that financial assur ance requirements are essential to public health and safety, these requirements are entirely absent from EPA’s subtitle D regulations. In fact, EPA asserts that it lacks the authority under subtitle D to require any
financial assurance.

Finally, it must b e noted that the failure to require financial assurance has real

- world consequences. On January 26, 2010, Perry County Associates, LLC and Perry

- Uniontown Ventures I, LLC, the permittee and owner of the Arrowhead Landfill, respectively, filed for Chapter 1 1 bankruptcy reorganization. [Footnote 356: In re Perry Uniontown Ventures I, LLC,
Nos. 10

- 00275 and 10

- 00276 (Bankr. S.D. Ala. filed Jan. 26, 2010).]. The Arrowhead Landfill is the repository for the 3 million tons of coal ash that was removed from Kingst on, Tennessee following the 2008 TVA disaster. The Arrowhead Landfill has been the object of citizen suits for violation of the Clean Air Act, the Clean Water Act and RCRA as a result of the coal ash disposal. [Footnote 357: Thirty

- four residents filed sui t against the landfill operator, Phill

- Con Services, LLC. Abrahams v. Phill

- Con Services, LLC, No. 2:10

- cv

- 00326 (S.D. Ala. filed June 25, 2010). Sixty

- four residents also filed a state lawsuit for damages and injunctive relief in state
court. Abrahams v. Phill

- Con Services, LLC, No. CV

- 2010

- 21 (Perry County Cir. Ct. filed June 21, 2010), removed to Bankruptcy Court as Abrahams v. Phill

- Con Services, LLC (In re Perry Uniontown Ventures I, LLC) , Adv. Proc. No. 10

- 00075 (Bankr. S.D. Ala. filed July 20, 2010)

. See letter from David A. Ludder to Gwendolyn Keyes Fleming, Regional Administrator, U.S. Environmental Protection Agency, Region 4 dated October 2010, attached to these comments as Appendix L.]. In fact, on July 14, 2010, EPA sent the Arrowhead Landfill a Letter of Concern following an inspection of the facility, requesting that the landfill owner take steps to comply with numerous Clean Water Act provisions. [Footnote 358: Letter from Christopher L. Plymale, Chief, East NPDES Enforcement Section, Water P rotection Division, US Environmental Protection Agency, Region 4 to Eddie Dorsett, President, Phill

- Con Services, July 14, 2010.]. The proximity of residences in Uniontown, Alabama to the enormous ash disposal operation at
the Arrowhead Landfill raises sub stantial concerns for the health of the community.893

In sum, the inability to properly operate and maintain a coal ash disposal facility, including executing safe closure and post

- closure care, will greatly endanger the residents of Uniontown, Alabama, as well hundreds of other communities located near coal ash dumps. Certainly the failure of subtitle D standards to require any financial guarantees is a clear violation of the standards set forth in section 4004(a) of RCRA.

Response: The Agency acknowledg es and appreciates this comment. As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include proposed financial assurance responsibility requirements. EPA further stated that any such requirements woul d be proposed separately. Consistent with the proposal, EPA is not promulgating any financial assurance requirement under this subtitle D rule.

Section 4.4.9.2

- EPA solicits comment on whether FA requirements under CERCLA 108(b) should be a key Agency foc us for ensuring that funds are available for addressing mismanagement of CCRs, should EPA regulate CCR disposal under Subtitle D (35210, 35224) Total Number of Submissions: 9 Total Number of Comments: 9



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 30 

### 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: Financial responsibility requirements are al ready implemented and are outlined in Wisconsin State Statues Chapters 289 and Michigan Public Acts 451. We do not believe that CERCLA is an appropriate instrument for managing financial responsibility.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 94 

### Organization 1 

### : Kentucky Department for Environmental Protection 

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



### Comment Excerpt Text: The Commonwealth would prefer EPA use Subtitle D authority for closure, post

- closure, and894

any groundwater corrective action. To require an amount necessary to clean up a Tennessee

- like spill, around $1 Billion would be difficult to imagine and a real burden on ratepayers. It would be more reasonable to use operating funds to keep the dikes in good working order. Regulated utilities cannot simply cease operation and default on their obligations. The Kingston ash pond incident establishes that such financial responsibility requirements are unnecessary since TVA has accepted responsibility and implemented the remediation. For facilities not regulated by the
Public Service Comm ission (merchant power plants), a bond for berm stability might be used for to provide the necessary financial assurance.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06280

- 35 

### 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: 3.7.6 

### Comment Excerpt Text: The Department requests that EPA clarify the interaction of fmancial assurance requirements under Subtitle C and potential impacts to requirements under CERCLA 108(b). Do CERCLA 108(b) requirements supersede RCRA Subtitle C requirements? Will States implem ent CERCLA 108(b) financial assurance requirements?

Response: The Agency acknowledges and appreciates the comment. The specifics of any CERCLA 108(b) requirement are unknown at this time.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 34 

### Organization 1 

### : So uthern 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: 11. Any Financial Assurance Requirements Should Provide Flexibility. EPA has requested comment on a variety of issues pertaining to possible financial assurance requirem ents. [Footnote 102: See id. at 35210, 35224.] Southern Company is aware of the advance notice of895

proposed rulemaking with respect to financial assurance requirements pursuant to Section 108(b) of the Comprehensive Environmental Responsibility, Compensatio n, and Liability Act (“CERCLA”). [Footnote 103: See 75 Fed. Reg. 816 (Jan. 6, 2010). ] Southern Company understands EPA’s comments in the preamble to the proposed CCB regulations, including especially the lack of specific proposals or detailed discussion, as an indication that EPA intends to address financial assurance issues in the context of that rulemaking prior to engaging in any
in

- depth review of the issue in the context of CCBs.

Southern Company urges EPA to allow flexibility with respect to the in struments or other methods to provide adequate financial assurance that may be required in the context of any new standards governing CCB facilities. Those requirements should allow for a demonstration of an assurance that is adequate and appropriate, taki ng into account the facility owner’s creditworthiness and the financial risk associated with the facility in question. Typical financial assurance instruments may include a trust fund, surety bond guaranteeing payment or performance, letter of credit, envi ronmental insurance, and corporate financial test for self

insurance. For CCB facilities, EPA should allow a corporate financial test that allows consideration of factors that make some electric utilities a relatively low credit risk, including a fixed geo graphic service territory, state

- regulated rates, substantial fixed capital assets, and a good credit rating. As EPA has observed in the context of underground storage tanks, “[l]arge, financially viable firms can provide evidence of financial responsibili ty without having to pay the costs of procuring financial mechanisms from other parties.” [Footnote 104: EPA,
FINANCIAL RESPONSIBILITY FOR UNDERGROUND STORAGE TANKS: A REFERENCE MANUAL 26 (1999), http://www.epa.gov/OUST/pubs/frustman.pdf.] Accordingly, fin ancial assurance requirements adopted by EPA must ensure flexibility, by allowing certain public utilities to demonstrate assurance of performance, including through a representation of self

- insurance where appropriate. 104

Response: The Agency acknowledg es and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 69 

### 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: The discussion on financial assurance on p. 35210 states that the proposed rule does not include
finan cial assurance requirements in the Sub D alternative, and is depending on separate rule

making for adding responsibility requirements under CERCLA 108(b). We do not support the concept that financial responsibility under CERCLA should be “a key agency focu s” under the
Sub D alternative.896

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06866

- 22 

### 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: Adopting financial assurance rules under CERCLA would be an acceptable alternative. If EPA
has sufficient resources to hand le this new workload, we believe it may be an appropriate framework for protecting taxpayers. However, it is important to note that this approach may increase the regulatory burden on some facilities; sites that already provide financial assurance to

a sta te for other purposes would have to provide a second financial assurance instrument to EPA. In our experience, facilities that split their obligations between a state and EPA have a much higher likelihood of making a mistake when it comes to submitting the ir financial assurance documentation. This situation also confuses the issue for regulators; states may believe EPA is handling a particular site's financial assurance, while EPA believes the state is handling that site. If EPA decides to adopt financial a ssurance rules under CERCLA, it should prioritize
identification of dual

- obligation facilities and coordinating proper oversight of those facilities with the appropriate state regulator.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07791

- 21 

### 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:



### Comment Excerpt Text: EPA requests comment, at 75FR35210, whether any financial assurance required by a Subtitle D rulemaking should be established under CERCLA §108(b). GAEPD unequivocally opposes this option, as CERCLA is non

- delegable and the state would only have access to and use of the funds through EPA. Our prior experience in executing financial assurance mechanisms has shown that GAEPD is best positioned to ensure the most efficient use of these funds.

Response: The Agency ackno wledges and appreciates the comment.897



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08253

- 34 

### 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: 4.4.9.1 

### Comment Excerpt Text:

15 Financial Assurance: We believe the states in which we operate CCR disposal units already have appropriate financial assurance mechanisms in place, and further federal programs under RCRA

- D are not necessary for electric utilities. If EPA chooses to pursue new financial assurance requirements for CCRs disposal units under RCRA

- D, the agency must acknowledge the rate

- recovery capability of regulated public utilities and provide an re?ray of fl exible alternatives to minimize the burden to owners, operators and electric customers. RCRA

- C is not a workable regulatory framework under any circumstance.

We do not believe that financial assurance requirements under CERCLA 108(b) should be a key

age ncy focus. We do not believe that financial assurance requirements for inactive CCR impoundments is an issue of significant concern for regulated public utilities, given the funding sources currently available. State public utility commissions have consist ently authorized appropriate funding for clean

- up or closure of these types of facilities, as well as other legacy concerns such as remediation of old manufactured gas plants or demolition of retired power plants.

Response: The Agency acknowledges and app reciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09273

- 15 

### Organization 1 

### : Iowa Department of Natural Resources (IDNR) 

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



### Comment Excerpt Text: Furthermore, while financial responsibility requirements for the electric power generation, transmission, and distribution industry under CERCLA § 108(b} should be a key Agency focus if CCR is regulate d under RCRA Subtitle D, the failure to include adequate financial assurance requirements in the proposed Subtitle D regulations must be construed as a deliberate attempt to steer this rulemaking toward the Agency's preferred RCRA C approach.898

Response: The Agency acknowledges and appreciates the comment.

Section 4.4.9.3

- EPA solicits comment on FA under existing state waste programs for CCR disposal facilities and whether and how Subtitle D regulatory approach might integrate with those programs (35210) Total Number of Submissions: 18 Total Number of Comments: 21



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03444

- 29 

### 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 has had financial assurance requirements in effect for all solid waste landfills, including industrial landfills, since 1994. The financial assurance requirements address closure, post

closure care, and corrective action.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 31 

### 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: Chapter 289.41 of the Wisconsin Statutes requires landfill owners to provide financial assurance during th e operating phase and during the long

- term care period. Financial assurance is provided through standard methods (bonds, deposits, escrow account, irrevocable letter of credit) or a net worth method. Michigan Public Acts 451 requires financial assurance in the form of a bond and the maintenance of a perpetual care fund.

Response: The Agency acknowledges and appreciates the comment.899



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 159 

### 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 requires financial assurance for special waste facilities, including coal combustion by

- product landfills, pursuant to 401 KAR 45:080. See http://www.lrc.ky.gov/kar/401/045/080.htm for more information. In the rules for special waste, including coal combustion residual landfill closure and post

- closure bonds, are slightly less

s tringent than our solid rules at 401 KAR 48:310. See http://www.lrc.ky.gov/kar/401/048/310.htm for more information. There are two reasons for this (1) Utilities are regulated by the Public Service Commission (PSC) which checks financial viability as a lar ge part of their mission; and (2) the department is directed by KRS 224.50

- 760 to have a separate set of regulations recognizing distinct differences between solid waste and special waste, such as coal combustion residuals:

"(d) The cabinet shall, when pr omulgating regulations affecting special waste, recognize special waste as a separate and distinct indivisible category and shall recognize the distinct differences between the category of special wastes and other hazardous wastes and solid wastes as defin ed in
KRS 224.01

- 010(31)(a) and 109.012(9) due to the fact that special wastes have large volume but
low hazardousness."

For more information on this statute, please see http://www.lrc.ky.gov/KRS/224

- 50/CHAPTER.HTM.

Merchant electrical plants, which sell electricity on the open market, are not considered "utilities" by the PSC, are regulated under the solid waste rules and would have to file a MSW Subtitle D equivalent bond from 401 KAR 48:310.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 93 

### Organization 1 

### : Kentucky Department for Environmental Protection 

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



### Comment Excerpt Text: Kentucky currently has financial regulations for ash landfills at 401 KAR 45:080 requiring that900

funds be available for closure and five years of postclosure care.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 96 

### Organization 1 

### : Kentucky Department for Environmental Protection 

### Commenter 1 : R. Bruce Scott Commenter Type: State Government
Classification: Su bstantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.7.6.2 

### Comment Excerpt Text: Kentucky has a special waste regulation, at 401 KAR 45:080, that includes coal combustion ash, addressing the situation:

"Section 9. Financial Assurance for Publicly Owned Facilities. The owner or operator of a publicly owned facility shall provide a budget for the permitting, construction, operation, closure, and postclosure care of the facility. The budget shall be revised and submitt ed annually. When elements of the facility's permitting, construction, operation, closure, or postclosure care are to be accomplished by contract or agreement, a copy of the contract or agreement shall be
submitted to the cabinet."

Otherwise, Kentucky cou ld use the municipal financial test.

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: 7.1.1.3 7.1.2.5 

### Comment Excerpt Text: viii. States Fail to Require Financial Assurances for CCR Landfills and Surface Impoundments.

Financial assu rance 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 state s901

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 Surface Impoundments ?]

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06411

- 12 

### 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: The proposal solicits comment on the financial assurance requirements under existing State waste programs, and how the proposed Subtitle D ap proach for CCR disposal facilities would be integrated under those existing programs. In Alabama, we currently have financial assurance requirements that are substantially equivalent to those in the federal MSW regulations. However, while our statutory aut hority requires our financial assurance regulations to comply in all respects with applicable federal regulations, the Act prohibits the Department from requiring financial assurance requirements which are more stringent than the federal requirements. As

s uch, since the proposed RCRA Subtitle D option does not include proposed financial responsibility requirements, no such requirements would be applicable in Alabama. Should future EPA rulemakings be undertaken to put such requirements in place, ADEM would b e required by State law to compel subject facilities to comply.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 70 

### 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:902

Wisco nsin, and likely many other States, already has requirements for financial responsibility for closure and long

- term care that apply to CCR landfills. The proposed rule should be revised to acknowledge existing state financial responsibility requirements fo r CCR disposal facilities allow States with such programs to regulate financial responsibility plans for CCR landfills, and take advantage of the financial responsibility rules already authorized under the 40 CFR 258
rules.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06838

- 24 

### 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: 4.4.9.1 

### Comment Excerpt Text: Minnesota believes financial assurance must be required for closure, postclosure, and contingency action for these fa cilities. Requiring financial assurance should be a key program element under the RCRA Subtitle D approach. If facilities cannot be required to maintain adequate financial assurance under Subtitle D, funding should be made available, whether through CERCLA or other means, to address mismanagement of CCRs.

Minnesota currently requires all CCR surface impoundments to obtain financial assurance for postclosure care prior to closing the facility. Therefore, surface impoundments that cease receiving CCRs prior to the effective date of this rule, will have financial assurance.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06866

- 21 

### 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:
Other Sections: 4.4.9.1 

### Comment Excerpt Text: Washington state solid waste rules require financial assurance for limited purpose landfills such as the coal ash landfill. These requirements are similar in most respects to RCRA requirements, but do not have the enforceability available under a RCRA subtitle C permit. It is important that903

financial assurance is a ke y program element under a subtitle D approach, as long as workable regulatory mechanisms are in place to enforce it.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06917

- 30 

### 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:



### Comment Excerpt Text:

EPA is a lso soliciting comments on whether financial assurance should be required for disposal of CCRs in surface impoundments and landfills under the Subtitle D option. As stated earlier,

on

- site disposal of nonhazardous industrial solid waste (i.e., CCRs) is exe mpt from the permitting requirements under the Texas rules. Under the Texas rules, financial assurance is not required for permit

- exempt activities. Therefore, requiring financial assurance for disposal of CCRs in surface impoundments and landfills under t he Subtitle D option would be inconsistent with current Texas regulations.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06987

- 9 

### Organization 1 

### : Entergy Services, Inc. 

### Commenter 1 : Joseph Hantz Commenter Type: Electric Utility 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 three coal plants and associated CCR landfills that Entergy oper ates are permitted by the Arkansas and Louisiana Departments of Environmental Quality. Both state programs require that CCR landfills be constructed at a minimum with a compacted clay liner of at least a two

- foot thickness with a hydraulic conductivity of no more than 1 x 10

- 7 cm/sec with a leachate collection system or with geosynthetic liners, meet stringent design criteria including floodplain and wetland restrictions and fault zone, seismic impact region and unstable area restrictions,
conform to standa rdized operational requirements, conduct groundwater monitoring, and comply with closure and post

- closure criteria as well as provide financial assurance.

Response: The Agency acknowledges and appreciates the comment.904



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 17 

### 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: 7.1.1 7.1.2 

### Comment Excerpt Text: Title 132, Chapter 8

- FINANCIAL ASSURANCE CRITERIA: SOLID WASTE MANAGEMENT FACILITIES. Financial assurance is required for all permitted landfills in Nebraska, including CCR landfills. Facilities are required t o provide a detailed written estimate for the cost of hiring a third party to close the largest area of the solid waste disposal area requiring a final cover as required in the regulations at any time during the active life in accordance with the closure p lan. Post

- closure costs must also be provided in a detailed estimate including the cost of hiring a third party to conduct postclosure care for the solid waste disposal area in compliance with the post

- closure plan. Allowable mechanisms include trust funds , surety bond guaranteeing payment or performance, letter of credit, insurance, corporate financial test, local governments financial test, corporate guarantee, local government guarantee, or other state

approved mechanism. Facilities may also use a combin ation of mechanisms to satisfy the need for financial assurance. In addition to financial assurance for closure and post

- closure care financial assurance can also be required for investigation or corrective action. The Integrated Solid Waste Management Act requires the owner or operator of a landfill to undertake corrective action in the event of contamination or a threat of contamination caused by the landfill. Financial assurance may be required in an amount determined by the director of NDEQ following pu blic notice and hearing.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 40 

### 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: NDEQ’s permitting program has implemented the same financial assurance requirements for
CCR landfills as it has for its approved municipal solid waste landfill permit program. Financial assurance is important to ensure money is available to complete closure, postclosure care, and corrective action. EPA should give consideration to how state programs are implementing
financi al responsibility requirements and allow flexibility for those programs to continue to be implemented.905

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07791

- 13 

### 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:



### Comment Excerpt Text: Georgia has adopted the Financial Assurance r equirements of 40 CFR 258 Subpart G by
reference in Rule 391

- 3

- 4

- .13(2)

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08225

- 17 

### Organization 1 

### : Minnesota Power (ALLETE) 

### Commenter 1 : Michael G. Cashin Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

Financial assurance. Utilities should continue to provide for financial assurance for long te rm coal ash disposal by providing a corporate guarantee while satisfying a financial test. The State of Minnesota is actively assessing facility closure, Financial Assurance Siting requirements.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 39 

### Organization 1 

### : Ohio Environmental Protection Agency 

### Commenter 1 : Chris Korleski Commenter Type: State Government
Classification: Substantive Comment Categ ory: Current Task: Examine Context Assigned/Due:
Other Sections: 4.4.9.1 4.7 

### Comment Excerpt Text:906

Ohio EPA supports establishment of CCR financial responsibility requirements for closure and post

- closure care consistent with what is required for RCRA subtitle D municipal solid waste landfills. Ohio EPA suggests that a separate regulatory subpart could/ should be incorporated in Parts 257 and 258 to cover financial assurance requirements for closure, post

- closure care, and
corrective action.

Ohio law excludes coal combustion ash from the definition of solid waste leaving 53 CCR disposal sites regulated under Ohio’s surface water program. Ohio regulations do not include financial responsibility requirements for these 53 CCR sites which includes 42 ash ponds. Ohio regulates an additional four CCR landfills disposing of flue gas desulfurization sludge under the state solid waste program. Ohio solid waste regulations do require financial assurance for closure and post

- closure for these four landfills. These four landfills have established financial assurance using the corporate test consistent with RCRA subti tle D municipal solid waste landfill requirements.

Ohio EPA has attempted to establish consistent and appropriate regulation of CCR disposal ash ponds and landfills as part of a broader 2006 effort to address regulation of industrial disposal ponds and l andfills. This 2006 effort sought to establish comprehensive design, operational, and monitoring requirements for both dry landfills and wet impoundments based upon the characteristics of the waste to be disposed. This included financial assurance for clos ure and post

- closure care. Ohio EPA’s efforts specific to establishing consistent regulation of CCR disposal facilities has been hampered in part by an Ohio law that excludes coal combustion ash
from the Ohio definition of solid waste. Given this situation , Ohio EPA would support Subtitle D development of federal CCR financial responsibility requirements for closure and post

- closure care applicable in those states that do not have regulatory established CCR financial responsibility requirements.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08251

- 42 

### 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: 4.4.9.1 

### Comment Excerpt Text: MassDEP recommends that financial assurance be a part of the Subtitle D approach to ensure that landfills are properly closed and ma intained after closure during the post

- closure period. Financial assurance has great value in helping to ensure that a landfill, once no longer in use, continues to be properly monitored, capped and closed. By setting aside funds for monitoring
and closur e, the owner/operator has a stake in ensuring that closure and post

- closure care are properly addressed and the state is ensured that the funds will be available, if needed, for907

monitoring and closure after waste is no longer coming in to the landfill or i f the state needs to take over the closure and/or monitoring of a site should the owner default.

MassDEP does not allow financial tests for local governments that own and operate landfills. MassDEP requires that funds be set aside in "Enterprise Accounts ", a special type of financial mechanism established specifically for municipalities. While a local government is not likely abandon a landfill, it may argue that it does not have sufficient funds available to ensure closure and monitoring of closing landf ills. A financial test does nothing to ensure that funds are actually available and will be spent to monitor, cap and close a landfill at the end of its useful life. MassDEP does not view financial assurance as an "extra" cost; it is one of the essential c osts of doing business for those who decide to operate a landfill that must be factored in as an annual operating expense.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08288

- 19 

### Organization 1 

### : Oklahoma Department of Environmental Quality 

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



### Comment Excerpt Text: Oklahoma already requires financial assurance for CCR disposal sites. Financial assurance is an effective way to assure adequate funds continue to be available for closure and post

- closure monitoring of these disposal sites.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 25 

### 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:



### Comment Excerpt Text: Pg. 35210, Financial Assurance: Arizona’s Aquifer Protection Permit program requires financial assurance for closure and post

- closure care of CCR surface impoundments and landfills. This is reviewed with the permit app lication; however, it is only re

- visited during a major permit modification. There is no regular review of financial assurance adequacy required in APP rules.908

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09431

- 13 

### Organization 1 

### : Otter Tail Power Company 

### Commenter 1 : Farren Richard Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 7.1.1 7.1.1.2 

### Comment Excerpt Text: In addition to the MPCA, local city and county departments are also are involved with the siting of the Hoot Lake Plant site. Similar to the MPCA, the North Dakota Department of Health and the South Dakota Department of Envir onment and Natural Resources oversee the solid waste sites at Coyote Station and Big Stone Plant, respectively. Again, the States are involved with the landfill design and construction requirements, permitting, overseeing operations, ground water
monitorin g data review, financial assurance review (North Dakota), and they issue final covering and post closure care requirements.

Response: The Agency acknowledges and appreciates the comment.

Section 4.5.1

- Subtitle D Prime option: EPA solicits comment on a pproach/potential modification proposed under Subtitle D prime option (35149, 35210); EPA solicits comment on whether Subtitle D prime option is protective of HHE (35223) Total Number of Submissions: 153 Total Number of Comments: 192



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06128

- 15 

### Organization 1 

### : Owensboro Municipal Utilities 

### Commenter 1 : Kevin D. Frizzell Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt T ext: The Subtitle D Prime option would not involve a scheduled phase

- out or retrofit of surface impoundments, but would allow them to continue operating, provided that these units meet applicable groundwater monitoring standards to ensure they do not pose a risk to the environment and human health. All existing surface impoundments should not be subject to an arbitrary requirement to retrofit regardless of their environmental performance.

The Subtitle D Prime option would allow facilities such as OMUs' El mer Smith Station (ESS) to continue operations with more cost affordable measures that would still be protective of human health and the environment for these nonhazardous materials. ESS does not have large on

- site ash ponds or landfills which are used for ultimate disposal of CCRs. Rather, coal ash is managed909

in a series of small settling impoundments such that the CCRs are continually removed from these impoundments. The CCRs are then utilized in a variety of beneficial reuse applications.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a compr ehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06129

- 8 

### 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:



### Comment Excerpt Text: Not all CCRs pose the range of environmental risks addressed by this proposal. In particular, we are assured, as EPA also suggests, that the hazardous constituents in CC Rs can be sequestered and rendered environmentally inert in a cementitious or glassy matrix. Accordingly, we feel that CCRs inherently characterized by such a matrix could be exposed to waterborne management practices with no adverse environmental impacts. This would be particularly true of bottom ash and boiler slag. We specifically would reserve judgment on whether flyash, FGD waste, and other CCR streams are or could be rendered inert during wet handling. However, we submit that bottom ash, boiler slag a nd other glass

- like CCRs are sufficiently inert that they could continue to be managed by wet methods under a restricted “D prime” alternative. This would obviously require a wet impoundment that meets safety and stability requirements. We feel strongly th at the CCR rule should afford the opportunity for continued wet management of these inert matrix
materials.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V a nd VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06198

- 2 

### Organization 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:910

I. Subtitle D Prime

The Subtitle D Prime option, with the pro per adjustments, will allow EPA to establish a robust and environmentally protective program for coal ash disposal units without crippling coal ash beneficial use and imposing unnecessary regulatory costs on power plants; threatening jobs, existing agreeme nts, power reliability, and increasing electricity costs. While some of our suggested modifications to the Subtitle D Prime proposal will likely necessitate issuance of a supplemental proposal, this additional procedural step is worthwhile because it will help ensure promulgation of an environmentally protective regulatory program for CCRs consistent with the rulemaking record and the dictates of the Bevill Amendment.

Ameren supports the Subtitle D Prime option because it would ensure the development of f ully protective controls for CCRs in an effective and practical manner. It would include all the elements of the primary "Subtitle D" option with the exception that it "would not require the closure or installation of composite liners in existing surface i mpoundments; rather, these surface impoundments could continue to operate for the remainder of their useful life." 75 Fed. Reg. at
35210.

As EPA itself acknowledges, many of the Subtitle D option's substantive requirements, including
those under Subtitle D Prime, are the same as those under the Subtitle C option, including the technical and design standards for CCR liner systems, groundwater monitoring and associated corrective action, and surface impoundment integrity standards. 75 Fed. Reg. at 35193. In fact, many of the provisions under the Subtitle D option "either correspond to the provisions EPA is proposing to establish for RCRA subtitle C, or are modeled after existing Subtitle C requirements." (d. In addition to borrowing from key elements of RCRN s existing standards for municipal solid waste landfills ("MSWLFs") under 40 C.F.R. Part 258

- which the Agency found "would be expected to address the risks presented by the constituents in CCR wastes"

– the proposed Subtitle D rules also considered and i ncorporated some of the self

- implementing elements of RCRA's hazardous waste interim status requirements into the Subtitle D proposal.
Id.

Given that the Subtitle D Prime's substantive controls are patterned in large part on the proposed
Subtitle C contr ols, the overall level of protection to human health and the environment are equivalent under both options. As EPA explains in describing the protective nature of the Subtitle D option, the Agency has historically interpreted both the Subtitle C and Subtit le D statutory provisions as requiring it "to establish a comparable level of protection, corresponding to an acceptable risk level ranging between 1 x 10" to 1 x 10' .. and that EPA can establish even more stringent Subtitle D standards where it deems suc h regulations are appropriate. (d. Therefore, the Subtitle D Prime option would provide the same level of protection to human hea~h and the environment as the Subtitle C option without the corresponding adverse impacts of the Subtitle C approach.

One of the elements of the Subtitle D Prime option that makes it the better choice is that it does not require all existing surface impoundments to close if they are operating in a manner that is fully protective of human health and the environment. This option d oes not include the automatic requirement to dredge and line all existing CCR surface impoundments within five years of the911

effective date of the regulations, or close these impoundments. Id. at 35244; proposed 40 C.F.R. § 257.71 (g). Under the Subtitle D Prime option, existing CCR surface impoundments would continue to be subject to groundwater monitoring and corrective action requirements so that any threats from these units during their operating life would be detected and appropriate corrective
action w ould be taken. We agree that CCR disposal units that are not fully protective must either take appropriate corrective action or close; however, there are many CCR surface impoundments which are perfectly safe. There is no reason why these units should not be allowed to continue operating.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regula tory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06203

- 1 

### 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:



### Comment Excerpt Text: As stated at an EPA public hearing on this proposal in Denver, Colorado on September 2, 2010, [FN 1: Testimony pres ented by Scott Davis, Director of Environmental Policy & Programs on behalf of Arizona Public Service Company attached to comments.] APS supports the development of federal regulations for CCRs under RCRA's Subtitle D non

- hazardous waste program, and belie ves the Subtitle D "Prime" option is the best regulatory approach. APS is in full agreement with the position of the Utility Solid Waste Activities Group ("USWAG") that the question is not whether EPA should develop regulations for CCRs, but rather how bes t to regulate CCRs under a federal program. As detailed in comments submitted by USWAG, which APS supports in full, the Subtitle D framework provides the appropriate legal structure under which EPA may develop federal regulations for CCRs, and the Subtitle D "Prime" option, with appropriate adjustments, offers the best path forward. Under this option, EPA would not reverse its final 2000 Regulatory Determination for CCRs, but instead would follow through on that determination by promulgating federal non

- haz ardous waste rules for the disposal of CCRs. Under this approach, CCRs would remain classified as non

- hazardous wastes, and EPA would develop Subtitle D national regulations for CCR disposal facilities enforceable by the states and by citizens under RCRA's citizen suit provision. The Agency also would retain its imminent and substantial endangerment authority to take action against any CCR units that posed a risk to human health and the environment. Thus, not only would this approach create an
environmental ly protective program for CCR disposal units, it would do so without crippling beneficial use and imposing unnecessary regulatory costs on power plants, threatening jobs and increasing electricity costs.912

Response: The Agency is not promulgating the subti tle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive
discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 5 

### 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: EPA acknowledges that the substantive requirements for CCR disposal units under a Subtitle D approach would be virtually identical to those that are proposed under the Subtitle C hazardous waste option, ensuring the environme ntally sound management of CCRs, without adversely impacting CCR beneficial use and unnecessarily regulating power plant operations that are not the focus of EPA’s concern with CCR disposal practices.

Nonetheless, the Subtitle D option requires improveme nts, including allowing for administration of the federal Subtitle D rules for CCRs by state regulatory programs to avoid duplication of federal and state efforts, as called for by Congress in the Bevill Amendment. This would also
allow states to enforce c ompliance through a traditional permitting framework. In addition, the accelerated timeframes for the closure of certain CCR disposal units must be extended to more realistically reflect the schedules and logistical and operational challenges for closing l arge units.

While the Subtitle D Prime option requires the above modifications, the RCRA Subtitle D framework provides the appropriate platform for ensuring the environmentally sound management of CCRs.

Response: The Agency is not promulgating the subt itle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive
discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 82 

### Organization 1 

### : Kentucky Department for Environmental Protection 

### Commenter 1 : R. Bruce Scott Commenter Type: State Government
Classification: Substantive Comment Category:913

Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.4 5.6.5 3.8.1 

### Comment Excerpt Text: Several places in the proposed rule refer to the "useful life" of surface impoundments. The rule does not appear to acknowledge that dredging of CCRs from the pon ds is a routine maintenance action undertaken by the operators. Under the proposed wording, if the operators dredge annually and remove CCRs making more space, the useful life of ponds is virtually unlimited unless definite dates are set in by the rule. Co ntinued, indefinite use of the ponds in an unlined status does not accomplish the same environmental protection goals. A specific deadline should be established to close or install composite liners on existing impoundments. Subtitle D Prime
should not be c onsidered, but rather Subtitle D with consistent controls on both landfills and ponds with enhanced monitoring.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06295

- 7 

### Organization 1 

### : Portland General Electric Company (PGE) 

### Commenter 1 : James J. Piro Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: PGE asks EPA to recognize the circu mstances of coal units that are scheduled to permanently cease coal operations. The remaining useful life of a coal unit and associated CCR disposal units should be considered in decisions about new requirements for existing sources. Existing CCR disposal units should be allowed to continue operating without major retrofits provided they meet applicable groundwater monitoring standards to ensure performance in an environmentally sound manner. This is a sensible approach especially when a source has agreed t o a shutdown date. Adding significant capital investment in existing facilities for regulatory compliance purposes could have the effect of forcing coal units to run over longer time periods in order to
recover costs associated with new environmental contr ols.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.914



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06296

- 4 

### Organization 1 

### : Alabama Coal Association (ACA) 

### Commenter 1 : David Roberson Commenter Type: Trade Association
Classification: Substantive
Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Should EPA deem new federal regulation to be necessary, EPA should proposed standards under its solid waste authority under RCRA Subtitle D but allow existing facilities to rem ain in operation, which EPA described as the Subtitle “D Prime” option. A modified D Prime approach is much more sensible and practical than EPA’s proposed regulations under Subtitle C or Subtitle D. The “D Prime” approach includes safeguards that will ens ures that existing CCB facilities are safe and effective by imposing new monitoring and inspection requirements. That will allow a confirmation that the facilities are operating as designed, without adverse environmental consequences and threats to safety.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06297

- 1 

### Organization 1 

### : Business Council of Alabama (BCA) 

### Commenter 1 : David Roberson Commenter Type: Trade Association
Classification: Substantive
Comm ent Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: Federal Regulation Is Unnecessary, But the “D Prime” Option Is the Best among EPA’s Proposals.

Direct federal regulation of CCBs is unnecessary. Coal ash and other CCBs consistently pass EPA’s own test procedures to determine toxicity; in other words, available scientific evidence shows that CCBs are not hazardous for purposes of RCRA Subtitle C. CC B management and disposal is straightforward, and states are fully able to oversee CCBs to the extent the states may deem appropriate.

Nevertheless, if EPA determines that federal action is necessary, BCA urges EPA to utilize its solid waste regulatory a uthority pursuant to Subtitle D and in a manner that allows existing CCB impoundments to remain in operation, in a fashion similar to EPA’s so

- called “D Prime” option. Unlike EPA’s proposed Subtitle D regulations, any new standards for CCB management and915

d isposal should flexible and allow qualified experts to approve facilities and operations that ensure safety and environmental protection in a manner that accounts for site

- specific conditions and operational realities. Performance

- based standards will allo w the regulated community to achieve the desired margin of safety in a more cost

- effective manner. On the other hand, to impose centrally dictated, inflexible standards would result in increased costs that do not effectively improve environmental protectio n, but which will drive up rates for utility customers.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete di scussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 56 

### 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:
Other Sections: 4.6.1.5 

### Comment Excerpt Text: The opportunity to provide some amount of time to use existing surface impoundments is worthy of consideration. However, it is important that existing surface impoundments be either closed or upgraded to new standards if they will be operated for a period of years.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06299

- 16 

### Organization 1 

### : MidAmerican Energy Holdings Company (MidAmerican)


### Commenter 1 : Cathy S. Woollums Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: EPA should adopt Subtitle D “Prime” Approach With Clarification/Modification

As highlighted earlier in our comments, MidAmerican supports th e development of federal regulations for CCR as a non

- hazardous waste under a RCRA Subtitle D “Prime” rule. The916

rulemaking record from the past twenty years, which has included two reports to Congress and two final Regulatory Determinations under the Bevil l Amendment has consistently found that the Subtitle D approach was the appropriate course for the regulation of CCR. Most recently in its 2000 CCR Regulatory Determination, the EPA reaffirmed the appropriateness of the Subtitle D option, concluding that t he Subtitle D regulations are the most appropriate mechanism for ensuring that CCR disposed in landfills and surface impoundments are managed safely. [FN 22: See 58 Federal Register at 42466.] In addition to the fact that CCR rarely exhibits hazardous

wast e characteristics, EPA explained that the decisive factors in reaching its final determination were: (1) improving trends in CCR disposal and utilization practices, (2) the current and potential utilization of CCR (i.e. beneficial use), and (3) Congress’ a dmonition in the Bevill Amendment against duplication of efforts by other federal and state agencies. [FN 23: Second Report to Congress at 3

- 5.] EPA’s focus on CCR disposal is understandable in the wake of the TVA incident. However, the TVA incident should not serve as the basis for an unjustified change in position without any new evidence. Nor should EPA respond blindly to

unsubstantiated and often inaccurate claims of so

- called damage cases.

Not only has there been consistent support in the previous rec ord for Subtitle D regulation, over the past year (mid

- 2009 to present), the overwhelming majority of the states, municipal and local
governments, over two

- dozen state environmental protection agencies, state Departments of Transportation, other federal ag encies, including the Department of Energy, have all expressed their support for regulation of CCR as a non

- hazardous waste under RCRA Subtitle D. Given the breadth and depth of this federal, state, and local support for the Subtitle D option, the EPA’s

ad option and promulgation of a Subtitle C approach would run contra to the Bevill Amendment’s directive that any federal regulatory program for CCR account for the views of other federal agencies and the states. [FN 24: See RCRA Section 8002(n).]

A Subtitle D “Prime” regulatory approach would be fully protective of human health and the environment. The D “Prime” approach would include virtually of the same elements of the Subtitle D program with the exception that it would not require the closure or installa tion of composite liners in existing surface impoundments. Instead, these surface impoundments could continue to operate for the remainder of their useful life. Further, it is important to note that almost all of the technical and design requirements are t he same under the Subtitle C or D programs (including D Prime). Specifically, all of the technical and design standards for CCR liner systems, groundwater monitoring and corrective action, and surface impoundment integrity
standards are identical for both regulatory options.

One element of the Subtitle D Prime option that is different than under the Subtitle C and D programs is the requirement to retrofit and or close all existing CCR surface impoundments. MidAmerican submits that it is not appropriate to r equire the upgrade and or closure of existing CCR surface impoundments which operate in a manner that is protective of human health and the environment. Under the Subtitle D Prime approach, existing CCR surface impoundments would continue to be subject to groundwater monitoring requirements. MidAmerican submits that the EPA and/or state regulatory agencies should have the discretion to require closure and/or upgrades of certain surface impoundments that are not protective of public health and the917

environmen t.

One of EPA’s stated concerns with the Subtitle D and D Prime options is the lack of direct federal enforceability to ensure that the individual states fully develop, implement and enforce a program. MidAmerican submits that the EPA has the authority to overcome any programmatic issues at the state level to develop Subtitle D program rules that are directly administered by the individual states with direct EPA enforcement authority. Specifically, the EPA can utilize the same combination of RCRA statutory authorities found under sections 4010(c) and 4005 (c) for the establishment of controls for CCR disposal units that it employed in promulgating the federally enforceable Subtitle D rules for municipal solid waste landfills. The combination of
these two Su btitle D provisions enables the EPA to promulgate non

- hazardous waste rules for CCR that can be directly administered through state permitting programs and directly enforced by EPA if the individual states fail to adequately implement federal rules. EPA’s concern that it cannot require states to implement Subtitle D controls is misplaced. RCRA allows EPA to promulgate Subtitle D rules that can be directly administered through state permitting programs and backed by direct EPA enforcement powers in states th at fail to implement the program. These rules would also be directly enforceable by the public under RCRA’s citizen suit provisions. [FN 25: See RCRA Section 7002.] EPA would also retain its “imminent and substantial endangerment authority” under RCRA to t ake action against any CCR unit that posed a risk to human health and the environment. [FN 26: Under RCRA Section 3008.]

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 2 

### 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
Classificatio n: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: II. FEDERAL REGULATION OF CCBS IS NOT WARRANTED OR NECESSARY; HOWEVER, AMONG EPA’S REGULATORY OPTIONS, A MODIFIED SUBTITLE “D
PRIME” APPROACH IS MOST APPR OPRIATE.

Southern Company believes federal regulation of CCB management and disposal practices is not warranted. The incident that led to this rulemaking procedure occurred at a federally owned facility, and EPA’s inspections of ash ponds around the coun try are demonstrating that the918

Kingston incident was an aberration and not typical of electric utility practices, as discussed further below at Part V.A. However, Southern Company has carefully reviewed EPA’s regulatory proposals under RCRA Subtitle C and RCRA Subtitle D, as well as the so

- called D Prime option. Among these, a D Prime approach, subject to certain modifications, is most appropriate.

A. A Modified “D Prime” Approach Is More Effective and Practical Than the Subtitle C and Subtitle D Proposal s.

A modified Subtitle D Prime approach, [Footnote 6: The Subtitle “D Prime” Option contains the same elements of the primary “Subtitle D” Option with the exception that Subtitle “D Prime” “would not require the closure or installation of composite liner s in existing surface impoundments; rather, these impoundments could continue to operate for the remainder of their useful life.” 75 Fed. Reg. at 35210.] properly developed with additional state regulatory oversight provisions, is the best among EPA’s thre e approaches for the regulation of CCB material. This D Prime approach would be fully protective of human health and the environment, with the least duplication [Footnote 7: See Congress’ admonition in the Bevill Amendment against duplication of efforts by other federal and state agencies. 65 Fed. Reg. 32214, 32215,
32221

- 22 (May 22, 2000); RCRA 8002(n), 42 U.S.C. 6982(n).] or preclusion of ongoing state and private efforts to manage CCBs. All CCB facilities would be subject to groundwater monitoring, and n ew CCB facilities and certain expansions would be subject to Subtitle D standards comparable to those that apply to Subtitle D facilities today. Existing facilities would be required to demonstrate that they are performing safely and effectively through a combination of measures, including groundwater monitoring.

In comparison to both the Subtitle D and Subtitle C proposals, a modified Subtitle D Prime approach would allow for more flexible, practical, and effective management of CCB surface impoundments (including alternative corrective action, closure, and postclosure care options) for the remainder of their useful lives. In addition, a modified Subtitle D Prime approach would not include the automatic requirement to either dredge and line all existing C CB surface impoundments within five years of the effective date of the regulations or close the impoundments. [Footnote 8: See 75 Fed. Reg. at 35244 (proposed 40 C.F.R. 257.71(g)). ] It makes no sense to upgrade and/or close existing CCB surface impoundmen ts operating in a manner that is fully protective of human health and the environment.

1. A Modified D Prime Approach Would Be Fully Protective of Safety, Human Health, and the
Environment.

The Subtitle D Prime approach, subject to additional suggestio ns provided in these comments, provides essentially the same level of protection of safety, human health, and the environment as EPA’s Subtitle C and Subtitle D proposals. [Footnote 9: See 75 Fed. Reg. at 35210 (requesting comment on the efficacy of a “D P rime” approach).] Groundwater monitoring would allow a determination, based on facts gathered at the site

— as opposed to unfounded assumptions based
on a lack of information

— of whether the facilities are performing up to expectations. Facilities working as designed, without adverse environmental impacts, would continue to operate. Only those facilities that fail to demonstrate an acceptable level of performance would be subject to919

upgrades or closure.

EPA’s proposal appears to be based on a false assumptio n that the absence of a liner necessarily results in groundwater contamination at facilities that were built before it was a standard practice to include liners in the original design and construction. However, depending on site

- specific
factors such as th e hydrogeologic setting and proximity to potential receptors, an unlined facility may pose no greater risk than a lined facility. For example, clayey material under the facility

— which can occur naturally depending on the local geology

— can prevent migration of contaminants due to lower hydraulic conductivity and natural attenuation capacity of the material. The fact that such a layer may occur naturally does not make it less effective. It is also possible that potential receptors may not be affected by conta mination from an unlined facility because of the distance between the receptors and the facility.

Any new regulations should allow for a demonstration that existing impoundments are protective of human health and the environment, even if they were not de signed and constructed in a manner that coincides with new standards for new facilities that ultimately take effect pursuant to this rulemaking. Evidence that could potentially be used for such a demonstration includes: (1) groundwater monitoring results; (2) water

- supply well surveys to demonstrate distance to the nearest receptor; (3) definition of local hydrogeology (e.g., hydraulic conductivity, presence of confining beds, etc.); (4) natural attenuation capacity of the geologic media; and (5) risk

asses sment. The techniques available to identify and consider these kinds of issues are well established and within the mainstream of existing scientific and commercial practices.

Any new regulations should also allow for the option to make physical modificat ions to a CCB management facility or targeted chemical applications to ensure protection of human health and the environment. For example, at one Southern Company facility, a slurry wall was constructed through the ash pond dike for its entire length and t ied into a subsurface confining bed with low hydraulic conductivity. Construction of the slurry wall effectively enclosed the ash pond, preventing groundwater contamination. Moreover, as discussed further at Part II.B.9 below, chemical fixation agents may be added to the ash, or to soil surrounding the facility, which prevent or impede contaminant migration.

Finally, Southern Company already applies an inspection regimen at existing facilities to monitor any visible indicators of issues that may have stru ctural stability implications. Southern Company’s comments on structural integrity issues are provided below at Part V.

The costs and benefits of this approach must be compared to those associated with EPA’s Subtitle C and D proposals, which would require closing or retrofitting most existing facilities and converting wet impoundments to dry landfills. Because a D Prime approach would allow only those facilities that are safe and effective to remain in operation, the benefits to human
health and the enviro nment are virtually identical. However, EPA’s Subtitle C and D proposals would be associated with staggering costs. Requiring all facilities nationwide to close or upgrade at the same time, regardless of site

- specific risks and performance, adds additional unnecessary costs by creating artificial short

- term demand for existing equipment and qualified personnel. Given that EPA’s Subtitle D Prime approach would provide a comparable level of protection, the huge incremental expense of EPA’s Subtitle C and D pr oposals cannot be justified.920

2. The States and Industry Are Prepared to Implement a Safe and Effective Program.

According to the preamble to the proposed rules, EPA “would implement similar technical controls under RCRA subtitle C or D.” [Footnote 10: Id. at 35133.] Disposal facilities under a Subtitle C and Subtitle D program are technologically equivalent. However, the roles of EPA and the states are very different. [Footnote 11: A Subtitle C program would impose significant additional, facility

- wide operational requirements, as discussed further in Part III of these comments. As explained there, the additional obligations would be difficult and expensive to administer, and they are unnecessary for purposes of safety and environmental protection.]
EPA’ s relatively limited role under Subtitle D appears to be EPA’s primary objection to the use of its Subtitle D authority.

EPA’s preamble includes language that suggests an attempt to undermine state and industry competence. EPA regards “the adequacy of St ate programs” as “a central issue” as to the decision of whether to implement a program under Subtitle C or Subtitle D. [Footnote 12: 75 Fed. Reg. at 35133; see also id. at 35152 (“The adequacy of state regulation is one of the key issues before the Agency . . . .”).] According to EPA, “the Agency is reticent to establish a regulatory program without any federal oversight.” [Footnote 13: Id. at 35157.] EPA assumes

— without providing supporting evidence

— that under a Subtitle D program, there will be “less

comp liance” than under a Subtitle C program, [Footnote 14: Id. at 35159.] by which EPA must mean that it is capable of achieving a higher degree of compliance than state agencies. According to EPA, the fact that Subtitle D does not provide EPA direct permittin g and enforcement authority “complicates the Agency’s ability to develop regulations that can be effectively implemented and tailored to individual site conditions.” [Footnote 15: Id. at 35160 (emphasis added).] The implication is unavoidable: A state effo rt would be ineffective. 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 16: Id. at 35194.]

For EPA, the choice between Subtitle C and Subtitle D has little to do with the properties of CCBs, or whether CCBs are actually “hazardous” for regulatory purposes. As EPA has acknowledged, CCBs routinely pass EPA’s own Toxicity Characteristic Leaching Procedure (“TCLP”); [Footnote 17: 65 Fed. Reg. 32214, 32230 (May 22, 2000) (“We further identified that leachate from various large volume wastes generated at coal combustion facilities infrequently exceed the hazardous waste toxicity characterist ic, for one or more of the following metals: arsenic, cadmium, chromium, lead, and mercury.”) (emphasis added).] that is, they do not exhibit the toxicity characteristic of “hazardous waste” that, if present, would subject CCBs to regulation
under RCRA Sub title C. Further, CCBs are produced in very large quantities, to an extent that is entirely out of proportion to current levels of annual generation of truly hazardous waste. Placing CCBs in the Subtitle C waste stream would overwhelm the existing Subtitle C infrastructure and place unreasonable administrative burdens on state agencies. CCBs are also relatively homogenous, which actually makes groundwater monitoring and other management issues more straightforward than is the case for Subtitle C landfills a nd even the typical Subtitle D municipal solid waste landfills (“MSWLFs”).921

Rather, for EPA, this is an issue of control. EPA appears to have drawn the conclusion that if Subtitle D does not provide EPA enough authority to regulate CCB management and disp osal as tightly as it prefers, then EPA must justify a Subtitle C program, regardless of whether a Subtitle C program makes sense and regardless of any other consideration. That reasoning is wrong, for two key reasons. First, EPA’s position rests on a misc haracterization of the efficacy of state programs. Second, EPA ignores aspects of its regulatory authority under Subtitle D

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referr ed to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 49 

### 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
Classificatio n: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: K. A Subtitle D Prime Approach Provides Structural Protections Comparable to Subtitle C and More Appropriate Operational Criteria Than Subtitle C.

Many of the substantive requirements under the Subtitle D proposal or a D Prime approach would be the same as those under the Subtitle C proposal, including the technical and design standards for CCB liner systems, groundwater monitoring and associated correcti ve action, and surface impoundment integrity standards. [Footnote 162: Id. at 35193.]

EPA has historically interpreted both the Subtitle C and Subtitle D statutory provisions as requiring EPA “to establish a comparable level of protection, corresponding to an acceptable risk level ranging between 1 x 10

- 4 to 1 x 10

- 6” and that EPA can establish even more stringent Subtitle D standards “where it deems such more stringent regulations are appropriate.” [Footnote 163: Id] A Subtitle D Prime approach would pro vide the same level of protection to human health and the environment as the Subtitle C proposal without the unnecessary adverse impacts of the Subtitle C approach.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.922



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06326

- 9 

### Organization 1 

### : Old Dominion Electric Cooperative (ODEC) 

### Commenter 1 : Lisa D. Johnson Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### C omment Excerpt Text: ODEC expresses qualified support for EPA's general effort to develop regulations under RCRA for CCRs; we believe the essential question is not whether CCRs should be regulated and subject to federal enforcement authority, but what form that regulation should take. To that end, ODEC supports the development of federal non

- hazardous waste regulations for CCRs under the proposed Subtitle D "Prime" option, 75 Fed. Reg. at 35210, provided that EPA first addresses the important limitations li sted below and explained in more detail in the NRECA comments.

l. Compliance with EPA's requirement to close surface impoundments and landfills within the proposed timeframe may not be feasible.

Response: The commenter is referred to the discussion in Un it V I of the preamble for a

discussion on closure.

2. EPA should not apply location restrictions to existing surface impoundments or landfills.

Response: The c ommenter is referred to the discussion on location criteria found in U nit VI of the preamble.

3. EPA should amend its run

- on control requirements for CCR surface impoundments. Current

run

- on controls were designed for Municipal Solid Waste landfills and are not appropriate for the way impoundments at many power plants are designed.

Response: The c ommenter is referred to the discussion on hydrologic and hydraulics criteria
found in U nit VI of the preamble.

4. EPA should allow for alternative groundwater monitoring parameters and should revise certain of the proposed parameters.

Response: The c omme nter is referred to the discussion on groundwater monitoring found in

U nit VI of the preamble.

5. EPA should allow registered professional engineers and hydrologists to make compliance certifications even if they are employees of the owner/operator of the disposal unit.

Response: The c ommenter is referred to the discussion on qualified professional engineers
found in U nit V of the preamble.923

6. The Subtitle D rule should allow for alternate liner systems.

Response: The c ommenter is referred to the disc ussion on alternative liner designs found in

U nit VI of the preamble.

7. Problems with certain definitions under the Subtitle D proposal should be addressed as
discussed below:

“CCR landfill” The proposed definition is overbroad and it would inappropriat ely capture the use of CCRs that are being used for a legitimate functional purpose, and thus are not a "solid waste" because they have not been "discarded." In addition, the phrase "large scale fill operations" is vague and cannot be included in a final r egulatory definition without a supplemental proposal setting forth discernible and readily understandable parameters as to what constitutes the type of "large scale fill operations" that would constitute a CCR landfill.

"CCR landfill and CCR piles" Anothe r flaw in the proposed definition of "CCR landfill" is that it would include all "piles" of CCRs, with no limitation of any kind ("For purposes of this part, [CCR] landfills also include piles, sand and gravel pits, quarries...").Id. at 35239

- 40 (proposed 40 C.F.R. §§ 257.2, 257.40(b)). As is the case with "large scale fill operations," inclusion of this term in the proposed definition is overbroad and would inappropriately capture CCR management activities that do not constitute disposal.

“CCR surface imp oundment" The proposed definition of "CCR surface impoundment or impoundment" is overly broad in that it would inappropriately capture impoundments that are not designed to manage CCRs. To correct this problem, ODEC urges EPA to adopt the suggested
definit ion of "CCR impoundment" set forth in the comments that the Utility Solid Waste Activities Group "USWAG" is submitting on the current Proposal and we adopt that suggested definition and incorporate it here by reference.

Response: The c ommenter is referred to the discussion on definitions found in U nit VI of the preamble

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06339

- 5 

### Organization 1 

### : Arizona Electric Power Cooperative, Inc. 

### Commenter 1 : Theresa D. Legere Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

III. AEPCO URGES EPA TO ADOPT NON

- HAZARDOUS WASTE RULES FOR CCRS924

Arizona Electric Power Cooperative expresses qualified support for EPA’s general effort to develop regulations under RCRA for CCRs; we believe the essential question is not whether CCRs should be regulated and subject to enforcement authority, but what form that regulation should take. To that end, Arizona Electric Power Cooper ative supports the development of nonhazardous waste regulations for CCRs under the proposed Subtitle D Prime option, [Footnote 42: 75 Fed. Reg. at 35210]

1. Compliance with EPA’s requirement to close surface impoundments and landfills within the

propos ed timeframe may not be feasible. Provided that EPA first addresses the important limitations listed below and explained in more detail in the NRECA comments, which are adopted herein by reference:

2. EPA should not apply location restrictions to existing surface impoundments or landfills.

3. EPA should amend its run

- on control requirements for CCR surface impoundments. Current

run

- on controls were designed for Municipal Solid Waste landfills and are not appropriate for the way impoundments at many power plants are designed.

4. EPA should allow for alternative groundwater monitoring parameters and should revise certain of the proposed parameters.

5. EPA should allow registered professional engineers and hydrologists to make compliance
certifications even if they are employees of the owner/operator of the disposal unit.

6. The Subtitle D rule should allow for alternate liner systems that are consistent with a qualified design engineer’s recommendations.

Response: The commenter is referred to the response made on the previous comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06352

- 12 

### Organization 1 

### : Dayton Power & Light Company (DP&L) 

### Commenter 1 : JoAnne Rau Commenter Type: Electric Utility Company
Classification: Subs tantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Subtitle D Option

The second option presented in the proposed rule is that of regulating CCRs pursuant to RCRA925

subtitle D as a non

- hazardous waste when designat ed for disposal and includes the "D prime" proposal. DP&L supports the D prime approach which provides for the proper management of CCRs designated for disposal while affording the continued operation of existing surface impoundments for the remainder of t heir useful life if they are being operated properly. It is DP&L's position that this approach is fully protective of human health and the environment in that it establishes reasonable standards for CCR management, many of which are the same as
those conte mplated as part of the subtitle C option including groundwater monitoring and corrective action for surface impoundments and landfills, while not subjecting CCRs to unnecessary and overly burdensome hazardous waste regulation.

USEPA has modeled the propos ed subtitle D CCR requirements after the regulations governing municipal solid waste landfills contained in 40 CFR part 258. This approach more appropriately recognizes that the problem that needs to be addressed is structural integrity of containment for a waste stream that is relatively inert and safe compared to wastes that have previously been designated as hazardous. As USEPA states:

EPA believes that the part 258 criteria represent a reasonable balance between ensuring the protection of human health and the environment from the risks of these wastes and the practical realities of facilities' ability to implement the criteria. The engineered structures regulated under part 258 are very similar to those found at CCR disposal facilities, and the regulati ons applicable to such units would be expected to address the risks presented by the constituents in CCR wastes. Moreover, CCR wastes do not contain the constituents that are likely to require modification of the existing part 258 requirements, such as org anics; for example, no adjustments would be needed to ensure that groundwater monitoring would be protective, as the CCR constituents are all readily distinguishable by standard analytical chemistry.

... [t]hus, several of the provisions EPA is proposing under RCRA subtitle D either correspond to the provisions EPA is proposing to establish for RCRA subtitle C, or are modeled after the existing subtitle C requirements. [FN 16: 75 Fed. Reg. at 35193.]

A key provision of the D prime option vs. the subtitle D approach is that it does not arbitrarily require the closure of existing surface impoundments if they are being operated properly. While the subtitle D proposal would require existing surface impoundments to either close by the
effective date of the fina l rule or be retrofit with a composite liner, included in the D prime approach are appropriate mechanisms to assure the existing impoundments continue to operate safely for the remainder of their useful life. These include groundwater monitoring and

correc tive action as well as stability requirements based on long

- standing Mine Safety and Health Administration (MSHA) protocols. DP&L agrees that surface impoundments that are not operated to be fully protective of human health and the environment should take action to correct any deficiencies or close but DP&L does not agree with a requirement to impose retrofit or closure requirements on facilities that are performing safely, especially when such requirements would impose significant costs to the utility indu stry for marginal, if any environmental benefit

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a926

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06357

- 24 

### Organization 1 

### : Kansas City Power & Light Company 

### Commenter 1 : Paul M. Ling Commenter Type: Electric Utility Company
Classification: Substanti ve Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The Subtitle D Prime Option will be Fully Protective of Human Health and the Environment

KCP&L supports the Subtitle D Prime option because it would ensure the development of fully protective controls for CCRs in an effective and practical manner. It would include all the elements of the primary “Subtitle D” option with the exception that it “would not require the closure or installation of composite liners in ex isting surface impoundments; rather, these surface impoundments could continue to operate for the remainder of their useful life.” 75 Fed. Reg. at
35210.

As EPA itself acknowledges, many of the Subtitle D option’s substantive requirements, including those under Subtitle D Prime, are the same as those under the Subtitle C option, including the technical and design standards for CCR liner systems, groundwater monitoring and associated corrective action, and surface impoundment integrity standards. 75 Fed. Re g. at 35193. In fact, many of the provisions under the Subtitle D option “either correspond to the provisions EPA is proposing to establish for RCRA subtitle C, or are modeled after existing Subtitle C requirements.” Id. In addition, the Subtitle D Prime o ption would allow continued recycling of ash products without the stigma of hazardous waste designation.

Given that the Subtitle D Prime’s substantive controls are patterned in large part on the proposed Subtitle C controls, the overall level of protectio n to human health and the environment are equivalent under both options. Therefore, the Subtitle D Prime option would provide the same level of protection to human health and the environment as the Subtitle C option without the corresponding adverse impact s of the Subtitle C approach.

One of the elements of the Subtitle D Prime option that makes it the better choice is that it does not require all existing surface impoundments to close if they are operating in a manner that is fully protective of human hea lth and the environment. This option does not include the automatic requirement to dredge and line all existing CCR surface impoundments within five years of the effective date of the regulations, or close these impoundments. Id. at 35244; proposed 40 C.F. R. § 257.71(g). Under the Subtitle D Prime option, existing CCR surface impoundments would continue to be subject to groundwater monitoring and corrective action requirements so that any threats from these units during their operating life would be detecte d and appropriate corrective
action would be taken.927

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discus sion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06357

- 26 

### Organization 1 

### : Kansas City Power & Light Company 

### Commenter 1 : Paul M. Ling
Comme nter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: KCP&L therefore supports the Subtitle D Prime option because it will ensure that CCR disposal practices are protective of human health and the environment without requiring the needless closure of environmentally sound CCR impoundments.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the pro posed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06388

- 5 

### 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:



### Comment Excerpt Tex t: The Commission does appreciate that federal regulations are required for states that have lax or no regulatory oversight of coal combustion waste. However, States such as Louisiana have established and implemented effective waste programs, and the LPSC believes that such beneficial programs should not be preempted.

As the entity charged with ensuring that Louisiana utilities operate efficiently, safely, reliably and in the public interest, the LPSC believes that the EPA's special waste designation would undermine our citizens' best interests. Regulation of CCRs under RCRA Subtitle C would very likely increase electricity costs and compromise the reliability of power delivery services in Louisiana. The LPSC accordingly opposes the Subtitle C option in the CCR proposal, and928

encourages the EPA to enact the RCRA Subtitle D "prime" option. This option would vest the EPA with sufficient authority to regulate sites that are out of compliance with water safety standards, while concurrently providing electricity p roviders with the necessary flexibility to manage coal ash efficiently, safely and cost effectively.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 15 

### 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: 4.1.3 

### Comment Excerpt Text: Duke Energy supports federally enforceable regulation for CCR as a non

- hazardous waste under the Subtitle D regulatory structure, including the D Prime option, and it recommends some additional important amendments to that option as discussed below.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requir ements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 19 

### 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: Duke Energy recommends that in adopting the Subtitle D regulatory option, the Agency amend the proposed Subtitle D framework so that the final rules are fully implementable by state environmental regulatory agencies. Many states curre ntly have robust non

- hazardous regulatory programs in place for CCR that either mirror 40 C.F.R. § 258 or are even more stringent than what EPA has proposed under the Subtitle D option in the Proposed Rule.929

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06410

- 65 

### Organization 1 

### : Commenter 1 : Anonymous Commenter Type: Anonymous
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: If a facility can demonstrate protectiveness of human health and the environment with financial assurance, D prime is a reasonable modification. D prime option may be beneficial for site

specific conditions and economic conditions affecting the facility. Lower costs for closure and operation of a facility has the potential to increase the available funds for financial assurance.
This would be a case

- by

- case assessment of conditions to determine protectiveness and available
financial assurance.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulat ory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.

As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include proposed financial assurance res ponsibility requirements. EPA further stated that any such requirements would be proposed separately. Consistent with the proposal, EPA is not promulgating any financial assurance requirement under this subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06411

- 13 

### 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: 4.1.3930



### Comment Excerpt Text: As stated previously, ADEM opposes the adoption of the Subtitle C option and supports the regulation of CCRs under Subtitle D. As for the Subtitle "D prime" option, the Department believes the requirement to ret rofit existing surface impoundments with composite liner systems would in essence force the closure of these impoundments. Since no data has been presented that shows CCRs to be a characteristic hazardous waste, the Department sees no substantial benefit t o accelerating the closure of the CCR impoundments currently in use. Since under both the Subtitle D and the Subtitle D prime options, the closure of the impoundments and the subsequent disposal of CCRs would meet the same requirements, the Department woul d urge EPA to adopt the Subtitle D prime option.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussi on of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06415

- 16 

### 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:



### Comment Excerpt Text: The proposed Subtitle D regulatory program would require the automatic closure of CCR surface impound ments that are currently operating in a manner that is fully protective of human health and the environment. EPA's alternative "Subtitle D prime" approach would be preferable ill this regard because it would include all of the elements of the proposed Subt itle D regulatory program except that it "would not require the closure or installation of composite liners in existing surface impoundments: rather these surface impoundments could continue to operate for the remainder or their useful life." However, the VCA believes that the following additional modifications (these modifications relate to several of the requirements found in the Subtitle D regulatory program as currently proposed) must be made to the "Subtitle D prime" approach before EPA adopts this app roach in any final rule.

• EPA should not adopt a specific timeframe for closure but require surface impoundments and landlills to close according to a closure plan approved by a state or developed and certified by a registered professional.

• The propos ed rule should be amended to not impose location restrictions on existing surface impoundments and landfills as EPA has provided no evidence in the record to substantiate structural stability issues in these restricted areas.931

• EPA should amend its run

- on control requirements for surface impoundments by instead just requiring that these units be designed to appropriately address peak discharge events.

• EPA should allow registered professionals to make compliance certifications even if they are employees of the owner/operator of the disposal unit.

• EPA should allow for alternate liner systems, since in many regions of the country and Virginia the proposed composite liner system is simply unnecessary to ensure groundwater protection and
in other instance s an alternate liner system (i.e. geosynthetic clay liners) would be more appropriate that the one proscribed in the proposed rule.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06422

- 23 

### Organization 1 

### : Dynegy Inc 

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



### Comment Excerpt Text: Furthermore, the Subtitle D Prime option is sufficiently protective of the environment. The only difference between Subtitle D and Subtitle D Prime regulation is that, under Subtitle D Prime, existing surface impoundments would not be required to be dredged and lined or c losed within five years of the effective date of the regulations; rather, existing surface impoundments could continue to operate for the remainder of their useful life. 75 Fed. Reg. at 35210. Thus, the Subtitle D Prime option has the very practical benefi t of allowing owner/operators to phase out existing surface impoundments in an orderly manner consistent with normal station planning, scheduling, and budgeting functions. The Subtitle D Prime option also appropriately recognizes
the fact that most recentl y constructed surface impoundments and landfills are lined due to state requirements. Importantly, the continued use of an existing surface impoundment through its useful life under the Subtitle D Prime option would be subject to groundwater monitoring and , in the event releases are detected, corrective action, including closure, where appropriate, would be required. Thus, because Subtitle D Prime largely mirrors Subtitle D, which has the same controls as the proposed Subtitle C standards, the Subtitle D Pr ime option would provide a sufficient level of protection, without the unnecessary costs and burdens associated with dredging and lining or closing existing surface impoundments that currently pose no threat to human health or the
environment.932

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a co mprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06424

- 4 

### 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: 4.1.3 

### Comment Excerpt Text: Subtitle D Prime Option

The description of the Subtitle D Prime Option in the proposed rules is:

“Under this option, the regulations would not require the closure or installation of composite liners in existing surface impoundments; rather, these surface impoundments could continue to operate for the remainder of their useful life.”

While we are supportive of this option in that it will allow Owners to fully utiliz e existing facilities, while still meeting stability and groundwater compliance standards, there is an inherent flaw in this approach unless much more specific criteria are provided. The TVA spill is the primary reason these rules are being considered. The TVA spill, in our opinion, was a result of
“wet

- stacking.” Even with significant engineering design and controls, the practice of “wet

stacking” is high

- risk as compared to other acceptable CCR disposal methods. Continuing “to operate for the remainder of their useful life” will allow Owners practicing “wet

- stacking” to continue and more importantly may drive other Owners to implement it.

If EPA is seriously considering the Subtitle D Prime Option and we believe EPA should, more specific rules must be inc luded in addressing the continued operation of existing CCR surface impoundments. EPA should specifically prohibit “wet

- stacking.”

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06446

- 6 

### Organization 1 

### : Hoosier Energy Rural Electric Cooperative (REC), Inc. 

### Commenter 1 : Michalene Reilly933

Commenter Type: Electric Utility Company
Cl assification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: VII. EPA Should Adopt Federal Non

- Hazardous Waste Rules For CCRs

A. Hoosier Energy expresses qualified support for EPA’s general effort to dev elop regulations under RCRA for CCRs; we believe the essential question is not whether CCRs should be regulated and subject to federal enforcement authority, but what form that regulation should take. To that end, Hoosier Energy supports the development of federal non

- hazardous waste regulations for CCRs under the proposed Subtitle D “Prime” option, 75 Fed. Reg. at 35210, provided that EPA first addresses the important limitations listed below and explained in more
detail in the NRECA comments.

1. Complian ce with EPA’s requirement to close surface impoundments and landfills within the proposed timeframe may not be feasible.

2. EPA should not apply location restrictions to existing surface impoundments or landfills.

3. EPA should amend its run

- on control r equirements for CCR surface impoundments. Current

run

- on controls were designed for Municipal Solid Waste landfills and are not appropriate for the way impoundments at many power plants are designed.

4. EPA should allow for alternative groundwater monitor ing parameters and should revise certain of the proposed parameters.

5. EPA should allow registered professional engineers and hydrologists to make compliance certifications even if they are employees of the owner/operator of the disposal unit.

6. The Su btitle D rule should allow for alternate liner systems.

Response : T he commenter is referred to the Agency ’s responses to the previous comment



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06339

- 5 

### Organization 1 

### : Arizona Electric Power Cooperative, Inc. 

### Commenter 1 : Theresa D. Legere Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:934



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06528

- 6 

### Organization 1 

### : Buckeye Power, Inc. 

### Commenter 1 : Patrick O'Loughlin Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Buckeye expresses qualified support for EPA's general effort to develop regulations under RCRA for CCRs; we believe the essential question is not whether CCRs should be regulated and subject to federal enforcement authority, but what form regulation should take. To that end, Buckeye supports the development of federal non

- hazardous waste regul ations for CCRs under the proposed Subtitle D "Prime" option, 75 Fed. Reg. at 35210, provided that EPA first addresses the important concerns and limitations listed below and explained in more detail in the NRECA

comments:

1. Compliance with EPA's require ment to close surface impoundments and landfills within the proposed timeframe may not be feasible.

2. EPA should not apply location restrictions to existing surface impoundments or landfills.

3. EPA should amend its run

- on control requirements for CCR s urface impoundments. Current

run

- on controls were designed for Municipal Solid Waste landfills and are not appropriate for the way impoundments at many power plants are designed.

4. EPA should allow for alternative groundwater monitoring parameters and sh ould revise certain of the proposed parameters.

5. EPA should allow registered professional engineers and hydrologists to make compliance certifications even if they are employees of the owner/operator of the disposal unit.

6. The Subtitle D rule should allow for alternate liner systems.

Response : T he commenter is referred to the Agency ’s responses to the previous comment



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06339

- 5 

### Organization 1 

### : Arizona Electric Power Cooperative, Inc. 

### Commenter 1 : Theresa D. Legere Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:935



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06540

- 8 

### Organization 1 

### : Indiana Construction Association (ICA) 

### Commenter 1 : Charles V. Kahl Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: This addresses impoundment integrity and water quality implications, as well as regulatory oversight, but still allows existing coal ash impoundments to continue operating and provides

cost

- effective construction materials.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referre d to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06541

- 3 

### Organiza tion 1 

### : Large Public Power Council (LPPC) 

### Commenter 1 : Brian H. Moeck, LPPC Environmental Task Force Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

• EPA should adopt the D

- prime option for existing surface impoundments Under § 3005(j)(6) of RCRA, any surface impoundment that is storing a waste that becomes newly subject to Subtitle C requirements must either come into compliance with the applicable minimum technology requirements, or else close. Thus, if EPA were to adopt the Subtitle C co

- proposal, the composite liner requirement for new CCR surface impoundments would apply to all existing CCR surface impoundments by operation of law. The statutory deadlin e for such retrofitting is four years, but under authority of § 3004(x) of RCRA, EPA has proposed to extend the deadline for existing CCR surface impoundments to five years (plus an additional two years to close units that are not retrofitted by that deadl ine).

There is no comparable statutory imperative under Subtitle D that would require existing CCR surface impoundments to be retrofitted to meet the liner requirements for new CCR surface impoundments. Nevertheless, not only would the Subtitle D co

- propo sal impose such a retrofit requirement on existing CCR surface impoundments, but it would set a shorter deadline (five years) than the deadline under the Subtitle C co

- proposal (seven years) for closing units that have not been retrofitted. LPPC objects to the retrofit requirement under Subtitle D, and urges EPA to936

adopt the D

- prime option, which would allow existing CCR surface impoundments to continue operating for the remainder of their useful lives, subject to the requirements for groundwater monitoring , corrective action, and stability (dam safety) specifications

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a

comp lete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06552

- 2 

### Organization 1 

### : Agru America, Inc. (Agru) 

### Commenter 1 : Ernest H. Heins Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.4 4.7 

### Comment Excerpt Text: Subtitle “D Prime” Option

Under EPA’s proposed Subtitle “D Prime” Option existing CCR Impoundments would not have to close or install composite liners, but could operate for the remainder of their useful life. We believe that this would be a gross oversight by the EPA to allow thes e facilities to continue operating as unlined facilities for an undetermined period of time.

EPA estimates that there are currently approximately 300 CCR landfills and 584 CCR impoundments. In 2004, EPA estimated that 31% of the CCR landfills and 62% of the CCR impoundments lacked liners. Therefore, exempting existing impoundments from the regulation for their useful life would allow a majority of unlined facilities (approximately 362 of 455 unlined CCR facilities) to remain unlined for an indeterminate p eriod of time. It is also worth noting that approximately 58% of the CCR impoundments lack Groundwater monitoring compared to 10% of the CCR landfills. EPA further notes that notes that states currently regulate CCR landfills at a rate which is disproporti onately high compared to CCR impoundments. Finally EPA notes that its decision to revisit the its regulatory determination for CCRs under the Bevill amendment is driven in part by the failure of a surface impoundment in Kingston, TN in
December 2009.

EPA ’s proposed regulation appears to lack a suitable definition for “useful life” as it pertains to CCR impoundments. We are concerned over who would be responsible for making this determination and for the potential lack of the ability to enforce closure bas ed on unreasonable determinations of “useful life”. Obviously the failure at Kingston was at a facility which was considered by the owner and its technical advisors to still be operating in its useful life. EPA currently estimates that that 75% of the CCR impoundments are greater than 25 years old and 10% greater than 50 years old.937

CCRs disposed in landfills are stabilized and typically exhibit a low permeability and a stable waste mass. However, the liquid/semi

- solid wastes disposed of in CCR impoundment s could pose a greater hazard to human health and the environment through their ability to flow and the potential for higher hydraulic pressures.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rul e. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2 009

- 0640

- 06723

- 18 

### 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: By EPA's own admission, the proposed design and performance standards for CCR disposal of Subtitles C and D are nearly identical. As referenced in the comments to Subtitle C, requirements governing the transportation, storage, and treatment of CCRs prior to disposal are not warranted. Therefore, CCR disposal can effectively be regulated under Subtitle D, specifically D prime. Implementing Subtitle D prime requirements is not anticipated to have an effect upon disposal

c apacity in West Virginia.

Properly designed and operated surface impoundments that are protective of human health and the environment should be allowed to continue to operate throughout their design life as afforded by Subtitle D Prime. To require the cl osure of all surface impoundments in response to the failure of TVA's inadequately designed Kingston, Tennessee, facility simply cannot be justified. Furthermore, as you are aware, the Tennessee Department of Health issued a report in early September 2010 which concluded that the Kingston incident did not cause any serious risk to
human health.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the prea mble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06726

- 7 

### Organization 1 

### : The North American Coal C orporation 

### Commenter 1 : Joseph D. Friedlander Commenter Type: Other Company938

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



### Comment Excerpt Text: As previously stated, North American Coal believes the Subtitle D prime option is the least bad proposal. Although our utility customers are in a better position to provide detailed comments regarding CCR handling in utility

- operated disposal facilities, s ome suggestions are provided here if EPA adopts this approach in the final rule. These modifications relate to several of the requirements found in the Subtitle D regulatory program proposed. First, EPA should not adopt a specific timeframe for closure but require surface impoundments and landfills to close according to a closure plan approved by a state or developed and certified by a registered professional. Second, EPA should not impose location restrictions on existing surface impoundments and
landfills since EPA has provided no evidence in the record to substantiate structural stability
issues in these restricted areas.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.

Third, EPA should amend its run

- on control requirements f or surface impoundments by instead just requiring that these units be designed to appropriately address peak discharge events.

Response: The commenter is referred to the revised requirement in Unit VI of the preamble

Fourth, in terms of groundwater monit oring, EPA should allow the state or a registered professional to delete constituents not reasonably expected to be in the waste or establish an alternative list of indicator parameters consistent with the groundwater monitoring programs applicable to muni cipal and non

- municipal solid waste landfills.

Response: The commenter is referred to the discussion in Unit Vi of the preamble.

Fifth, EPA should allow registered professionals to make compliance certifications even if they are employees of the owner/operator of the disposal unit.

Response: The commenter is referred to the discussion of qualified professional engineers found in Unit V of the preamble.

Finally, EPA should allow for alternate liner systems, since in some regions of the country, th e proposed composite liner system is simply unnecessary to ensure groundwater protection, and in other instances, an alternate liner system (i.e. compacted clay liners) would be more appropriate than the one prescribed in the proposed rule. For example, co mpacted clay liners have been proven effective in North Dakota's semi

- arid climate for containment and control of disposed CCR's from electrical power plants939

Response: The commenter is referred to the discussion on alternative liner system found in

Unit VI of the preamble

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06813

- 2 

### Organization 1 

### : Central Arizona Water Conservation District (CAWCD) 

### Commenter 1 : Thomas W. McCann Commenter Type: Local Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.2 4.1.3 

### Comment Excerpt Text: We concur with SRP's recommendations that CCR NOT be regulated under the Resource Conservation and Recovery Act ("RCRA") Subtitle C hazardous waste controls, but instead be regulated as a non

- hazardous waste under Subtitle D of RCRA. Moreover, EPA should adopt the Subtitle D "Prime" option described in SRP's comments, together with the improvements (allow
direct state administration

– extend timelines for any closures) to the Prime option that are also
described in detail in SRP's comments.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06813

- 3 

### Organization 1 

### : Central Arizona Water Conservation District (CAWCD) 

### Commenter 1 : Thomas W. McCann Commenter Type: Local Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The Subtitle D Prime option, with the SRP

- recommended revisions, will a llow EPA to establish an environmentally sound and protective program for management of CCRs in land disposal units. This option will not impair or unnecessarily stigmatize the beneficial use of CCRs, or impose unnecessary regulatory costs on NGS, which in turn would result in increased costs of electricity for CAWCD, potentially decreased reliability at NGS, and ultimately higher water
costs for the CAP customers.940

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06813

- 5 

### Organization 1 

### : Central Arizona Water Conservation District (CAWCD) 

### Commenter 1 : Thomas W. McCann Commenter Type: Local Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: CAWCD joins SRP in urging EPA to adopt the non

- hazardous waste, Subtitle D Prime approach to regulation of CCRs with the following important revisions or modifications:

Allow alternatives to composite liners when site specific characteristics support such
alternatives.

Response: See preamble discussion in Unit VI.

Require closure, if necessary, only under a state approved program that prov ides a reasonable
time frame.

Response: See preamble discussion in Unit VI.

Allow an alternative list of groundwater monitoring parameters based on site specific conditions and approval by a registered professional.

Response: See preamble discussion in Unit VI.

Include a mechanism for qualified state programs to administer the rules instead of the self

implementing approach.

Response: See preamble discussion in Unit IX

.

Ensure an adequate time frame for facilities to come into compliance.941

Response: See preamble discussion in Unit VI.

The Subtitle D Prime option offers the same level of protection as the Subtitle C option without the significant and costly impacts of Subtitle C, while (i) allowing the continued use of environmentally acceptable exist ing CCR surface impoundments for the remainder of their useful lives; and (ii) supporting the continued beneficial use of CCRs.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06820

- 11 

### Organization 1 

### : Western Business Roundtable 

### Commenter 1 : Holly Propst Commenter Type: Trade Association
Classification: Substantive
Comment Ca tegory: Current Task: Examine Context Assigned/Due:
Other Sections: 4.5 

### Comment Excerpt Text:

4. Subtitle D

- Prime Option is the most workable alternative.

The Roundtable believes that the Subtitle D

- Prime Option is the most reasonable alternative been advanced in the proposed rule. It would incorporate major Subtitle D requirements, but would allow CCR surface impoundments deemed environmentally sound to con tinue to operate for the
remainder of their useful lives. With some corrections

– including those we have highlighted
above in these comments

– this option has decided advantages:

It would be consistent with EPA’s final 2000 Bevill Regulatory Determinati on for CCRs, EPA’s other evaluations/determinations from 1988, 1993 and 1999, as well as the reams of historical technical data produced from private and public sources regarding CCRs.

It would assure that CCR disposal units nationwide are operated in an environmentally

protective manner.

It would allows qualified states (those with programs that meet or exceed the Subtitle D standards) to step in and assume administration of the regulations. This, in turn, would help assure enough flexibility in the re gulatory regime to account for regional and state

- specific soil, hydrologic and other environmental conditions.

It would avoid the inherent inefficiencies that come with “one

- size

- fits

- all” federal regulations. States can more efficiently monitor and reg ulate facilities and develop operational and closure requirements that make both environmental and economic sense.942

It would be less cumbersome than other alternatives, would avoid overly oppressive and duplicative regulations and, thus, help minimize the chance that the regulations would unnecessarily drive up electricity costs or impair availability/use of CCPs throughout the

economy.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reade r is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 0682 7

- 7 

### Organization 1 

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

### Commenter 1 : Kenneth E. Raymond Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

V. If Addi tional Rules are Merited and Applied in a Consistent Manner, then the Agency Should Adopt the Subtitle D "Prime" Option with Appropriate Amendments As evidenced by the above comments, it is OG&E's opinion that the Subtitle C option is both
inconsistent wit h the statute and could result in unwarranted regulation, especially when the same level of protection of human health and the environment can be achieved through a regulatory program structured under RCRA Subtitle D. For this reason, OG&E supports the
ado ption of an appropriate Subtitle D "Prime" option with certain amendments. This option would allow the Agency to establish an environmentally protective program for landfills and surface impoundments where CCRs are disposed without imposing unnecessary and unreasonable costs on the electric utility industry. And, as previously noted, the development of regulations under RCRA Subtitle D would be the consistent with the Agency's final regulatory determinations made via the statutory process established by Con gress pursuant to tlle Bevill
Amendment. The Agency acknowledges in the proposed rule that many of the Subtitle D option's substantive requirements, including those under the Subtitle D "Prime" option, are the same as those under the Subtitle C option, inc luding the technical and design standards for liners and leachate collection systems, groundwater monitoring and associated corrective action and surface impoundment integrity standards. Given that the Subtitle D option's controls are patterned in large pa rt on the proposed Subtitle C option's controls, the overall level of protection to human health and the environment would appear to be equivalent under both options. However, one of the key elements of the Subtitle D "Prime" option that makes it a more ap propriate option is that it does not include the requirement that existing CCR surface impoundments be retrofitted with composite liners and leachate collection systems. It is unnecessary to upgrade or close existing impoundments that are operating in a ma nner that is protective of human health and the environment in light of the fact943

that they would continue to be subject to groundwater monitoring and corrective action requirements such that any threats from them during their operating life would be detect ed and appropriate corrective action taken. Indeed, one of the single largest anticipated cost elements of the primary Subtitle D option would be the mandatory upgrade or closure of all CCR surface impoundments. There is no basis for the imposition of this requirement on existing impoundments that are operating in a safe and effective manner. For this reason, the Subtitle D "Prime" option would be the most appropriate option of those proposed because it will ensure that CCR management practices are protecti ve of human health and the environment without requiring the needless upgrade or closure of otherwise environmentally sound surface impoundments. Other critical issues associated with the Subtitle D option tllat need to be addressed include: an overly broa d definition of "CCR surface impoundment" that could inappropriately include impoundments that receive only incidental amounts of CCRs into the universe of regulated surface impoundments; an overly broad definition of "CCR landfill that inappropriately inc ludes "large scale fill operations" and "piles"; unrealistic timeframes for the closure of CCR surface impoundments; unwarranted location restrictions for CCR surface impoundments; unnecessary

run

- on control requirements for CCR surface impoundments; the a bsence of alternative liner systems for CCR surface impoundments; erroneous leachate collection system requirements; and constituents considered inappropriate or unnecessary for the proposed groundwater monitoring program. Each of these issues is discussed in detail below

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06832

- 23 

### Organization 1 

### : SCANA Corporation 

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



### Comment Excerpt Text: Subtitle D Prime Option

The only description of the Subtitle D Prime Option in the proposed rules is:

Under this option, the regulations would not require the closure or ins tallation of composite liners in existing surface impoundments; rather, these surface impoundments could continue to operate for the remainder of useful life.

While we are supportive of this option in that it will allow owners to fully utilize existing
f acilities, while still meeting stability and groundwater compliance standards, there is an inherent9 44

flaw in this approach unless much more specific criteria are provided by the EPA. If the agency is seriously considering the Subtitle D Prime Option (and we believe the agency should), then more specific rule requirements must be included to address the continued operation of existing CCR surface impoundments.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06833

- 17 

### Organization 1 

### : Dominion Resources Services, Inc. 

### Commenter 1 : Lisa J. Keck on behalf of Pamela Faggert Commenter Type: Electric Utility Compa ny Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The results of the structural integrity assessments support the selection of the D Prime option, which would allow existing CCR surface im poundments to continue operating for the remainder
of their useful life.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06833

- 8 

### Organization 1 

### : Dominion Resources Services, Inc. 

### Commenter 1 : Lisa J. Keck on behalf of Pamela Faggert Commenter Type: Electric Utility Compan y Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: We believe that EPA should regulate CCRs under the "Subtitle D Prime" option presented in the proposed rule. EPA acknowledges that the substantive requirements for CCR disposal units under a Subtitle D approach would be virtually identical to those propose d under the Subtitle C hazardous waste option, ensuring the environmentally sound management of CCRs, without adversely impacting CCR beneficial use and unnecessarily regulating power plant operations that are not the focus of EPA's concern with CCR dispos al practices. The Subtitle D Prime option945

avoids the major flaw contained in the alternative Subtitle D option, which is the unfounded requirement to retrofit or close all surface impoundments irrespective of their environmental performance. The Subtitle D Prime option correctly recognizes that existing CCR impoundments should be allowed to continue operating, provided that these units meet applicable groundwater monitoring standards to ensure they arc performing in an environmentally sound manner.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as w ell as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06844

- 1 

### 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: IPA supports RCRA Subtitle D "Prime" option

IPA believes the "Subtitle D Prime" option is the best option to regulate CCR. This option will
enable EPA to establish an effective environmentally protective program without hurting CCR beneficial uses and imposing significantly higher electricity costs to ratepayers. Under RCRA Subtitle D Sections 4005(c) and 4010(c), the EPA has statutory authority to promulg ate federal regulations specifically designed for CCR disposal units. These regulations would be directly enforceable by the states and the public under RCRA's citizen suit provision.

In addition, the EPA would also retain its imminent and substantial en dangerment authority to take action against any CCR units that posed a risk to human health or the environment. The development of Subtitle D regulations for CCR under Section 4010 of RCRA offers a workable solution for the EPA, electric utilities, and the public. While this approach would likely require a supplemental proposal, it will provide the EPA with the enforcement authority it desires, while avoiding the adverse implications of Subtitle C. The command

- and

- control Subtitle C hazardous waste option w ould not be needed because the EPA can develop federally enforceable rules for CCR under an equally protective, Subtitle D non

- hazardous waste program.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.946



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06846

- 11 

### Organization 1 

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

### Commenter 1 : Richard B. Tedder on behalf Mary Jean Yon Commenter Type: S tate Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.6.1.2 

### Comment Excerpt Text: o In Part 257.71 EPA is proposing that existing CCR surface impoundments be constructed with

a composite liner within five years of the effective date of the final rule. The Department disagrees with this requirement and believes EPA's proposed "D prime" approach for surface impoundments is appropriate. Under D prime, existing surface impoundments w ould not have to close or install composite liners and could continue to operate for their useful lives. The Department agrees with the D prime approach for existing surface impoundments provided they are shown not to be causing adverse environmental impac ts. Only in those cases where the data demonstrates that the impoundment is causing, or expected to cause, environmental impacts would it be required to install a new or upgraded liner system.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirement s of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06851

- 1 

### Organization 1 

### : American Electric Power (AEP) 

### Commenter 1 : John M. McManus Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.2 4.1.3 

### Comment Excerpt Text: AEP strongly recommends that USEPA adopt a regulatory program under the D Prime option. AEP also strongly believes that an approach under Subtitle C is completely unwarranted.

AEP recommen ds that USEPA adopt the D Prime option, which would allow continued use of ash ponds meeting performance standards, and is a reasonable and environmentally protective standard to which to hold the electric power industry.

Response: The Agency is not prom ulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive

discussion of the technical requirements of the rule.947



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06863

- 24 

### 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: Avista supports the development of Subtitle D non

- hazardous waste regulations for CCRs under the proposed Subtitle D “Prime” option, provided that EPA first incorporates certain important
modifications discussed below. See PPL Generation testimony from August 31, September 2, and September 21. The Subtitle D Prime option, with the proper adjustments, will allow EPA to establish a robust and environmentally protective program for coal ash disposal units w ithout crippling coal ash beneficial use and imposing unnecessary regulatory costs on power plants or threatening jobs, power reliability, and affordable electricity costs. While some of our suggested modifications to the Subtitle D Prime proposal will lik ely necessitate issuance of a supplemental proposal, this additional procedural step is worthwhile because it will help ensure promulgation of an environmentally protective regulatory program for CCRs consistent with the rulemaking
record and the dictates of the Bevill Amendment. A. The Subtitle D Prime Option Will Be Fully Protective Of Human Health And The
Environment Avista supports the Subtitle D Prime option because it would ensure the development of fully protective controls for CCRs in an effective and practical manner. It would include all of the elements of the primary “Subtitle D” option with the exception that it “would not require the closure or installation of composite liners in existing surface impoundments; rather, these surface impoundment s could continue to operate for the remainder of their useful life.” 75 Fed. Reg. at
35210. Under the Subtitle D Prime option, existing CCR surface impoundments would continue to be subject to groundwater monitoring and corrective action requirements so t hat any threats from these units during their operating life would be detected and appropriate corrective action would be taken. Avista agrees that CCR disposal units that are not fully protective must either take appropriate corrective action or close; ho wever, there are many CCR surface impoundments that have adequate controls in place to protect human health and the environment. There is no legitimate reason why these units should not be allowed to continue operating. As mentioned earlier, the continued use of storm water/waste water management surface impoundments is critical to the ZLD operations at Colstrip. Regulation under the Subtitle D Prime option would therefore not adversely impact this operation.

Response: The Agency is not promulgating the s ubtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive
discussion of the techni cal requirements of the rule.948



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06863

- 28 

### 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: While Avista supports the Subtitle D Prime option, (and believes that it can be administered through qualified state programs with back

- up EPA enforcement authority in under

- performing states as explained in USWAG's co mments), there are fundamental flaws with elements of the proposed regulations. Key problems include: unrealistically short closure timeframes for CCR disposal units; the unwarranted application of all location restrictions to CCR surface impoundments; the inclusion of inappropriate constituents in the proposed groundwater monitoring program, the failure to allow for alternate liner systems, and an overly broad definition of “CCR Landfill” that inappropriately includes all “large scale fill operations.”

Res ponse: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.

Response: The commenter is referred to Unit IV of t he preamble for a discussion o f EPA’s 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

- 06867

- 1 

### Organization 1 

### : Manufacture Alabama 

### Commenter 1 : Blake Hardwich on behalf of Mike Conlon Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 11.2.5 4.1.3 

### Comment Excerpt Text: Federal Regulation Is Unnecessary, But the "D Prime" Option Is the Best Among EPA's Proposals.

Direct federal regulation of CCBs is unnecessary. Coal ash and other CCBs consistently pass EPA's own test procedures to determine toxicity; in other words, av ailable scientific evidence shows that CCBs are not hazardous for purposes of RCRA Subtitle C. CCB management and disposal is straightforward, and states are fully able to oversee CCBs to the extent the states may deem appropriate.949

Nevertheless, if EPA d etermines that federal action is necessary, Manufacture Alabama urges EPA to utilize its solid waste regulatory authority pursuant to Subtitle D and in a manner that allows existing CCB impoundments to remain in operation, in a fashion similar to EPA's so called "D Prime" option. Unlike EPA's proposed Subtitle D regulations, any new standards for CCB management and disposal should flexible and allow qualified experts to approve facilities and operations that ensure safety and environmental protection in a m anner that accounts for sitespecific conditions and operational realities. Performance

- based standards will allow the regulated community to achieve the desired margin of safety in a more cost

- effective manner. On the other hand, to impose centrally dictat ed, inflexible standards would result in increased costs that do not effectively improve environmental protection, but which will drive up rates for utility

customers.

Response: The Agency is not promulgating the subtitle D prime option that was present ed in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06867

- 10 

### Organization 1 

### : Manufacture Alabama 

### Commenter 1 : Blake Hardwich on behalf of Mike Conlon Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Othe r Sections: 4.1.3 

### Comment Excerpt Text: In conclusion, Manufacture Alabama appreciates the opportunity to provide these comments on EPA's proposed CCB Rule. As set out above, Manufacture Alabama urges EPA to adopt a modified Subtitle "D Prime" approach that allows existing facilities to remain i n effect and provides flexible, performance

- based standards. Any regulation beyond this approach will only add costs and threaten jobs, without any commensurate improvement to safety, public health or environmental protection.

Response: The Agency is no t promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive

disc ussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06868

- 2 

### Organization 1 

### : Cleco Corporation 

### Commenter 1 : Bill Matthews950

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



### Comment Excerpt Text: EPA should adopt the Subtitle D Prime regulatory option because it will be protective of human health and the environment and because many solid waste units already have Subtitle D Prime
controls installed. Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is ad opting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06877

- 3 

### Organization 1 

### : Detroit Edison Company 

### Commenter 1 : Dennis Leonard Principal Engineer Commenter Type: Electric Utility Comp any Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: As detailed in the more extensive comments of the Utility Solid Waste Activities Group (USWAG)*, the Subtitle D Prime option is fully protective of the environment, the most cost effective and the only option that is consistent with the Bevill Amendment to the Resource Conservation and Recovery Act. Detroit Edison echoes USWAG's comment on the appropriateness of a subtitle D program as w ell as all of the other comments of USWAG. Detroit Edison and its parent company DTE Energy are members of USWAG.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Uni ts V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06877

- 7 

### Organization 1 

### : De troit Edison Company 

### Commenter 1 : Dennis Leonard Principal Engineer Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:951



### Comment Excerpt Text: Detroit Edison supports a subtitle D prime approach with the inclusion of much more flexibility and state agencies involvement in site specific design considerations such as the one explained above. The result would be a rule that would encourage the reuse of CCR byproducts. For th ose CCR's that cannot be recycled, a subtitle D prime approach, described above, would also encourage the reuse of existing CCR disposal sites, rather than needlessly forcing utilities to develop Greenfield sites.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive
discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06915

- 2 

### Organization 1 

### : Alcoa Inc. 

### Commenter 1 : Curt Wells Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 5.6.2 

### Comment Excerpt Text: 2. Alcoa believes that a Subtitle C approach is not substantiated and recommends implementation of the Subtitle D’ approach. EPA’s proposed rule was initiated primarily as a result of the December 2008 impoundme nt failure and resulting coal ash spill from the TVA facility in Kingston, TN. As a result of this incident, EPA is now proposing to potentially overturn its own two prior Bevill exemption precedents regarding the regulatory classification of coal combusti on residuals (CCR’s) *Subtitle C option+ or at a minimum enhance the management regimen for CCR surface impoundments and landfills in lieu of a regulatory reclassification *Subtitle D and D’ options+. Alcoa believes that revising the regulatory determinati on for CCR’s is not supported by the
available data and that the most efficient and cost

- effective means to ensure protection of human health and the environment is to implement a Subtitle D’ option.
Alcoa has reviewed the EPA Office of Research and Develo pment Report entitled ‘Characterization of Coal Combustion Residues from Electric Utilities

– Leaching and Characterization Data’ from December 2009 and found that it does not support overturning the prior Bevill exemption precedents for CCR management und er Subtitle D. For example, arsenic leachabability of CCR’s is noted as a key concern in the proposal. In the report, a range of liquids across different pH’s is used to perform TCLP testing that generates data from 34 CCR sources (Report Figure 55). Of th e 34 sources, all 34 exhibited a leachability at their own pH of less than 5 mg/L, the current characteristic criteria for hazardous waste designation. One sample of the 34 then exhibited a leachability of greater than 5 mg/L when the testing was run with liquids at a variety of non

- standard pH’s . EPA then expresses concern regarding the leachability952

of arsenic from CCR’s and uses that information to support overturning the prior Bevill exemption precedents. Alcoa believes that the arsenic data actually su pports the prior Bevill determinations in that a huge preponderance of the data indicates low arsenic leachability across a wide range of pH’s. EPA’s own statistical tests such as that presented in SW

- 846 Chapter 9 provide a validation of this.
In addition , Alcoa’s own test data from groundwater assessments near both active and closed surface impoundments at the Alcoa Warrick facility indicates that CCR material is safely managed outside of RCRA Subtitle C controls. This data was derived through groundwater monitoring performed as a part of the RCRA Facility Investigation process. Groundwater from
several areas was tested: The first area was an active surface impoundment (ash ponds

– SWMA B) where piezometers were installed into the ash pond walls. The water data obtained from this area is indicative of what can be expected to infiltrate from the ash ponds and gives the first indication of the leachability of the ash material. This test data indicates that TCLP tests conducted as per SW

- 846
overstate the aver age leachability of all of the compounds within the ash with the exception of arsenic (for which the water concentration is essentially identical to the TCLP data). Further note that this point in the ash pond wall is far upstream of any potential receptor s and prior to the incorporation of any DAF or other factors into a risk model. The second area was downstream of an ash fill area (SWMU 42) and is similar in scope and application to the Battlefield Creek Golf area referenced as a site of concern in the p reamble. This data indicates that downstream ground water samples were equal to or better than background samples in the area. The third area included ash ponds (SWMU 57) that have been closed for over 20 years. The test data from this closed and capped as h pond indicates no detection of any chemicals above their relevant levels of concern in the groundwater. Table 1 provides a summary of the data supporting the above comments. The full dataset is also being submitted as an addendum for EPA’s consideration and in further support of Alcoa’s
comments in this area. [See original comment for Table I: Summary of TCLP data, Piezometer Data, and Groundwater Data Taken from the RCRA Facility Investigation] As noted by the actual test data from Alcoa

- Warrick Operatio n’s ash pond, potential groundwater impacts from by coal combustion by

- products can be managed without Subtitle C controls. EPA’s conservative approach by using the differing pH ranges for the TCLP data and then applying conservative transport models to th at data overstates the impact of these compounds in the environment and does not provide sufficient justification to overturn the previous Bevill precedents. Many of the raw feed stocks of coal will have differing constituents, and many of the end products from coal combustion are different. This was noted in the draft rule’s TCLP data for the various combustion products. Also, the geological conditions in which this material is handled will vary among different facilities. Having an overarching and overly conservative rule not tailored to note differences in coal, coal residues, or geology is inappropriate. Rather, Alcoa believes that CCR’s should be managed at the state level through a Subtitle D’ approach. For this reason, Alcoa recommends that a basic in vestigative approach to determine the actual impact that CCRs may pose to human health and the environment on a facility

- specific basis be incorporated into the Subtitle D’ option. Then, this determination can be used by the state regulatory agency to
deve lop a management strategy for CCR’s that is commensurate with the site specific conditions953

and potential environmental impacts noted. Using this tailored approach under the Subtitle D’ option, EPA can be assured of using sound science and due diligence in CCR management rather than mandating a one

- size

- fits

- all approach based on overly conservative assumptions as is proposed with the Subtitle C option

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed ru le. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06917

- 28 

### 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:



### Comment Excerpt Text:

Under the D

- prime request, EPA is soliciting comments on whether existing CCR surface impoundments should be allowed to operate until the end of their operating life without having to be closed or retrofitted with comp osite liners. Considering that the EPA proposal requires groundwater monitoring for these units, TCEQ suggests that EPA not require closure or costly liner retrofits for existing CCR surface impoundments with low potential for releases of CCR
constituents to groundwater.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06956

- 3 

### Organization 1 

### : Tri

- State Generation & Transmission 

### Commenter 1 : Barbara A. Walz Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: B. The Subtitle D Prime Option Will Be Fully Protective Of Human Health And The954

Environment The Subtitle D Prime op tion proposed by EPA would be fully protective of human health and the environment. It would include all the elements of the primary Subtitle D option with the exception that it would not require the closure or installation of composite liners in existing surface impoundments; rather, those environmentally compliant impoundments could continue to operate for the remainder of their useful life. EPA acknowledges in the proposal that many of the Subtitle D option’s substantive requirements

– including those u nder Subtitle D Prime

– are the same as those under the Subtitle C option, including the technical and design standards for CCR liner systems, groundwater monitoring and associated corrective action, and surface impoundment integrity standards. Many of the provisions under the Subtitle D option either correspond to the provisions EPA is proposing to establish for RCRA Subtitle C, or are modeled after existing subtitle C requirements. In addition to borrowing from key elements of RCRA’s existing standards fo r municipal solid waste
landfills under 40 C.F.R. Part 258

– which the Agency found would be expected to address the risks presented by the constituents in CCR wastes

– the proposed Subtitle D rules also considered and incorporated some of the self

- impleme nting elements of RCRA’s hazardous waste interim status requirements into the Subtitle D proposal. Given that the Subtitle D Prime’s substantive controls are patterned in large part on the proposed Subtitle C controls, the overall level of protection to hu man health and the environment are equivalent under both options. One of the elements of the Subtitle D Prime option that makes it the better choice is that it would

not include the automatic requirement to dredge and line all existing CCR surface impound ments within five years of the effective date of the regulations, or close these impoundments. It makes no sense to upgrade and/or close existing CCR surface impoundments operating in a manner that is fully protective of human health and the environment. U nder the Subtitle D Prime option, existing CCR surface impoundments would continue to be subject to groundwater monitoring and corrective action requirements, so that any threats from these units during their operating life would be detected and appropriat e corrective action taken

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory app roach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06956

- 6 

### Organization 1 

### : Tri

- State Generation & Transmission 

### Commenter 1 : Barbara A. Walz Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: 2. The Subtitle D Prime Option Requires Certain Amendments to Better Reflect CCR Disposal Operations
Tri

- State G&T believes the Subtitle D Prime option can be administered through qualified state955

programs with EPA enforcement oversight in under

- performing states as is appropriate. Tri

- State G&T also believes there are flaws with elements of the proposed Subtitle D Pri me option that need correction. Key problems include: unrealistically short closure time frames for CCR disposal units; the unwarranted application of all location restrictions to existing CCR surface impoundments; the inclusion of inappropriate constituen ts in the proposed groundwater monitoring program, the failure to allow for alternate liner systems, and an overly broad definition of “CCR Landfill” that inappropriately includes all “large scale fill operations.” These
and other issues are discussed belo w

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.

Response: The commenter is referred to Unit IV of t he preamble for a discussion o f EPA’s 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

- 06987

- 29 

### Organization 1 

### : Entergy Services, Inc. 

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



### Comment Excerpt Text: Entergy Supports the Subtitle D “Prime” Designation with Necessary Adjustments

As stated above, Entergy supports federal regulation of coal ash under the Subtitle D regime, although, as currently written, the proposal needs significant improvements to avoid potentially insurmountable compliance issues.

Response: The Age ncy is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehen sive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06987

- 6 

### Organization 1 

### : Entergy Services, Inc. 

### Commenter 1 : Joseph Hantz Commenter Type: Electric Utility Company
Classification: Substantive956

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



### Comment Excerpt Text: Unlike the Subtitle C approach, D “Prime” will establish a robust and environmentally protective program for coal ash storage and disposal units without crippling coal ash beneficial use and imposing unnecessary regulatory costs on power plants, threatening jobs and increasing electricity costs. The Subtitle D “Prime” option recognizes that existing CCR impoundments with sound performance should be allowed to continue operating.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06987

- 7 

### Organization 1 

### : Entergy Services, Inc. 

### Commenter 1 : Joseph Hantz Commenter Type: Electric Utility Company
Classification: Substantive
Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.2 7.4.2 

### 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. Entergy 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 municipal solid waste (MSW) landfills and non

- MSW
landfi lls that may receive conditionally exempt small quantity generator hazardous waste.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble f or this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06988

- 13 

### Organization 1 

### : Missouri Joint Municipal Electric Utility Commission957



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



### Comment Excerpt Text: A modified Subtitle D option is less likely to destroy beneficial reuse of coal ash, impose unnecessary regulatory costs of municipal power plants and the citizens in their communities, threaten electric power reliability and increase unemployment levels. Meeting the USWAG recommendations may require additiona l regulatory processes, but doing so will give the EPA a robust common sense solution to a perceived environmental threat that would be consistent with the rulemaking record and the dictates of the Bevill Amendment.

Response: The Agency is not promulgati ng the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive
discussion of th e technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06991

- 15 

### 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: 9.3.7 

### Comment Excerpt Text: If EPA chooses to promulgate CCR regulations, EKPC believes it would be most prudent to promulgate the regulations under the Subtitle D' option for several reasons.

Subtitle D' is just as protective of groundwater and provides the same environmental benefits with much lower costs (see attached Table 1) to our members as options C and D. All three options require groundwater monitoring, and corrective actions if a rele ase is identified. D' would allow electric utilities to utilize their existing surface impoundments for storage, which would alleviate the immediate and long

- term capacity issues that will occur under the Subtitle C and D options. D' would also include clo sure requirements, stability requirements, fugitive dust controls, financial responsibility, and the institution of a national standard for storing CCR.

[See original comment for Table 1: Estimated Costs of Subtitle C, D, and D' options; a detailed
list o f estimated costs is provided for each of EKPC's three facilities]958

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06993

- 5 

### Organization 1 

### : Oglethorpe Power Corporation 

### Commenter 1 : Douglas J. Fulle Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Oglethorpe Power supports the general effort to develop non

- hazardous waste regulations for CCBs, however, and believes' that the "D Prime" option, with some modifications, could serve as the appropriate regulatory vehicle. In addition to allowing existing CCB disposal facilities to continue operations for the remainder of their useful lives, EP A should, at most, simply impose requirements which ensure that such facilities are safe, effective and performing as expected. Beneficial uses of CCBs should receive broad support from the Agency, to avoid unwanted impacts of disposal and unnecessary uses of virgin resources otherwise needed to replace CCBs in beneficial applications. As discussed immediately below, state authorities are well

- positioned to regulate CCBs in a manner beneficial to public (including the citizens of the State of Georgia).

Res ponse: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07001

- 19 

### Organization 1 

### : Vectren Corporation 

### Commenter 1 : Angila M. Reinerford Commenter Type: Electric Utility Company
Classification: Substantive
Com ment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 9.3.11 

### Comment Excerpt Text:

Vectren has estimated that the closure and retrofit costs for Vectren's facilities under the proposed RCRA Subtitle C program would total $90 million dollars, with an additional $2.5 million annually for incremental O&M. By comparison, under the proposed Subtitle D Prime program closure costs for Vectren's facilities would not be expended until the conclusion of the959

remaining useful lives of the existi ng surface impoundments, provided that Vectren can demonstrate that the existing surface impoundments are environmentally sound. Thus, under the D Prime proposal, Vectren's ratepayers will receive the assurance of an environmentally sound CCR regulatory pr ogram, yet not be required to pay for unwarranted and exorbitant closure, handling and disposal requirements that do not add significantly to the environmental, health and safety benefits of the existing state regulatory programs.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07047

- 21 

### Organization 1 

### : Great River Energy 

### Commenter 1 : Erik Silvola Commenter Type: Electric Utility Company
Classification: Substantive
Comment Cate gory: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: GRE supports the Subtitle D prime option. We support this option as it avoids the issues detailed above for equivalent environmental protection. GRE feels EPA has the authority to e nforce non

hazardous disposal rules through several avenues. Please refer to the comments supplied by USWAG and the National Rural Electric Cooperative Association (NRECA).

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07047

- 23 

### Organization 1 

### : Great River Energy 

### Commenter 1 : Erik Silvola Commenter Type: Electric Utility Company
Classification: Substantive
Comment Cate gory: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: We also support this option because it preserves the use of existing ponds which are functioning960

in a safe and environmentally protective manner. GRE feels strongly that any Subtitle D option must include a mechanism for a qualified state program to implement the CCR rules where the program meets or exceeds the federal requirements.

Response: The Agency is not promulgating the subtitle D prime option that was presented in
th e proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 43 

### 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: 4.1.3 

### Comment Excerpt Text: The Subtitle D Prime option would be the preferable approach for Nebraska. NDEQ has only one permitted facility that meets the definition of a surface impoundment, and that does not have a composite liner system . A ground water monitoring program is implemented at this facility and monitoring results demonstrate that the facility has not impacted ground water. Requiring this facility to either close or retrofit with a composite liner system would be costly and yi eld no greater environmental benefit.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the r egulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07682

- 6 

### Organization 1 

### : Class of '85 Regulatory Response Group 

### Commenter 1 : Debra J. Jezouit et al., Ba ker Botts L.L.P. on behalf of Class of '85 Regulatory Response Group Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text:

EPA should adopt the Proposal's Subtitle D Prime Option, subject to certain improvements961

(outlined below and fully described in the US WAG comments), because it is supported by the rulemaking record and will be fully protective of human health and the environm ent.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07682

- 7 

### Organization 1 

### : Class of '85 Regulatory Response Group 

### Commenter 1 : Debra J. Jezouit et al., Baker Botts L.L.P. on behalf of Class of '85 Regul atory Response Group Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: EPA should improve the Proposal's Subtitle D Prime Option by: (1) increasing the transition period, which is inadequate as proposed; (2) not applying location restrictions to existing landfills or surface impoundments; (3) modifying run

- on control requirements; (4) allowing alternative groundwater monitoring parameters and revising proposed parameters; (5) allowing registered professionals who are also owner/operator employees to make compliance certifications; (6) allowing alternative liner requirements; (7) correcting errors related to leachate collection system requirements; and (8) clarifying andlor modifying certain definitions that are currently vague andlor improper

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the pr eamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule. The commenter is referred to Unit VI of the preamble for the Agency’s responses to t he proposed changes the commenter has requested.

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07682

- 8 

### Organization 1 

### : Class of '85 Regulatory Response Group 

### Commenter 1 : Debra J. Jezouit et al., Baker Botts L.L.P. on behalf of Class of '85 Regulatory Response Group Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:962

Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.2 

### Comment Excerpt Text: EPA should coordinate the implementation of the Proposal's Subtitle D Pr ime Option with the states and allow qualified state programs to directly administer Subtitle D CCR regulations.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Unit s V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule. The commenter is also referred to the

discussion in Unit V on th e approach utilizing subtitle D authority.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07803

- 6 

### Organization 1 

### : GDF SUEZ Energy Generation North America 

### Commenter 1 : Bradley J. Cooley Commenter Type: Electric Utility Company
Classification: Substantive
Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: GSEGNA Support for Subtitle D Prime Approach

GSEGNA understands EPA’s concern about the unregulated management and disposal of coal combustion residuals, as expressed in the pr eamble to the proposed rule. Of the alternatives EPA has proposed to address this concern, GSEGNA believes strongly that the Subtitle D, or non

hazardous waste approach is most appropriate; and that within the Subtitle D option, the briefly described “Subt itle D Prime” approach is the best alternative. The Subtitle D Prime approach provides adequate and sufficient environmental protection at the lowest cost to the regulated industry. EPA has expressed a concern about lack of federal enforceability under the current regulatory structure. Although EPA may be unsure of how it would enforce a Subtitle D Prime program, the same RCRA provisions that allow EPA to regulate municipal solid waste landfills would apply here. In RCRA Section 4010(c), the agency is direc ted to develop upgraded Subtitle D standards for facilities that “may receive” or may potentially receive “household hazardous wastes” or conditionally exempt small quantity generator wastes. A related provision is RCRA Section 4005(c), which authorizes EP A to enforce these upgraded Subtitle D regulations in those states that fail to adopt the federal rules. EPA itself has described this authority as “significant in that it represents the first authority for EPA enforcement of regulatory requirements under Subtitle D” [Footnote 1: 53 Fed. Reg. 33314, 33383 (August 30, 1988)]. CCR disposal facilities would be included in the scope of EPA’s authority under these provisions, as they are Subtitle D facilities that “may” accept household hazardous wastes and CESQ G wastes, and clearly have the “potential” to receive such wastes.963

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08211

- 25 

### 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: 4.1.4 

### Comment Excerpt Text: The NDDoH does not support the "D

- Prime" option because we believe that ex isting unlined impoundments should be lined, as currently required in our rules. Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for th is rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08216

- 7 

### Organization 1 

### : Dixie Electric Cooperative 

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



### Comment Excerpt Text: We feel that the approach in the Subtitle D Prime option offers the same degree of protection without the burdens of Subtitle C and that this approach will create a reasonable and effective regulatory program that protects the environment, while not adversely impacting our economy.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical req uirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 72 

### Organization 1 

### : Maryland Department of the Environment (MDE)964



### Commenter 1 : Shari T. Wilson Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The Department notes that the under the ‘‘D prime’’ option, “...existing surface impoundments would not have to close or install composite liners but could continue to operate for their useful life.” As the Department understands that many of the existing impoundments are not lined, we do not see how this could be as safe as an appropriate regulatory system that does require safe closure or retrofit within a reasonable time. However, the Department encour ages EPA to adopt a proposal similar to the 40 CFR 258 rule, not “D Prime” or either of the proposed rules.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08221

- 11 

### Organization 1 

### : NextEra Energy, Inc. 

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



### Comment Excerpt Text: As stated earlier NextEra energy supports the developm ent of Subtitle D regulation under the D Prime option with some modification. The USWAG comments provide extended detail of the modifications recommended. (See Section XI and XII of the comments submitted by USW AG) To protect the established CCR beneficia l use markets and avoid unnecessary customer rate increases NextEra Energy encourages EPA to pursue the Subtitle D proposal with modifications to allow for acceptance of qualified state programs, use to end of life for existing landfills and impoundments t hat are performing according to design and allowing for alte rna tive liner systems. A flexible nonhazardous industrial waste standard will provide for protection of public
health and the enviro nment as well as avoiding an excessive financial burden for the utility industry and its customers that would result form either a Subtitle C hazardous waste determination or restrictive Subtitle D regimen.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a965

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08221

- 2 

### Organization 1 

### : NextEra Energy, Inc. 

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



### Comment Excerpt Text:

An effecti ve Subtitle D program would provide for minimum standards, a mechanism for approval of effective state programs, state specific flexibility for alternatives to the minimum criteria, and continued use of existing ash management facilities (both wet and dry) to end of life as long as they do not endanger public health or the environment. A rigid prescriptive approach that has no flexibility to consider other factors such as local geology and available materials can be inefficient and add necessary costs.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as w ell as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08223

- 10 

### Organization 1 

### : MeadWestvaco 

### Commenter 1 : Dirk J. Krouskop Commenter Type: Beneficial User
Classification: Substantive
Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.2 4.1.2 4.1.3 

### Comment Excerpt Text: Conclusion: MWV cautions against an over reaction by USEPA with regard to the proper management of CCRs. Subtitle C is not only unnecessary, bu t would cause an overload on available resources if managed as a hazardous waste. By making such a determination it will discourage the beneficial use of CCRs, resulting in two important negative consequences. First, facilities will turn away from benefici al use projects due to perceived liability issues. Second, this will lead to additional landfill disposal of materials, which runs contrary to encouraging recycling and alternative uses for materials.

USEPA should focus on impoundment and dam safety and their impact on human health and966

environment and not try to move CCRs into a Subtitle C or D program.

MWV requests that EPA carefully consider this proposed rule and the ramification of going to a Subtitle C program. If EPA must add new regulations, MWV supports the Subtitle D "Prime" option which allows continued use of well

- maintained existing units. MWV encourages the Agency to develop a rule that protects human health and the environment while providing maximum flexibility to the already overly regula ted business community.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory appro ach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08223

- 5 

### Organization 1 

### : MeadWestvaco 

### Commenter 1 : Dirk J. Krouskop Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: EPA Promulgation of the Subtitle D "Prime": MWV continues to believe regulation of CCRs
should continue to occur at the state level. I f EPA insists on new regulations, MWV supports the Subtitle D "Prime" option which allows continued used of existing units that are not leaking as the most reasonable approach USEP A could consider. These units should be evaluated on a case by case basis. Virtually all the Pulp and Paper Industry impoundments, are smaller, dry impoundments and do not pose a risk to human health and environment.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. T he reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08225

- 10 

### Organization 1 

### : Minnesota Power (ALLETE) 

### Commenter 1 : Michael G. Cashin Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:967

EPA Refines the D Prime Option into its Final CCR Rule.Under EPA’s proposed D Prime option, existing ash storage facilities would be allowed to continue to operate through the rest of their operational life. MP strongly supports provisions that would allow existing facilities to continue to receive coal ash when being managed in a responsible manner. Forcing closure of existing ash storage facilities prematurely unnecessarily adds to the amount of acreage that has been impacted by ash storage. In independen t programs, the EPA has proposed incentives for use of ash storage “brown field” sites for applications such as renewable energy development. It makes good sense to optimize the storage of ash at existing facilities before requiring
construction of new ash storage facilities at other locations, so that “brown field” environmental benefits can be optimized for ash storage before the land is targeted for other purposes. Premature closure of an existing ash storage operation unnecessarily adds to compliance co sts while effectively increasing the amount of real estate impacted by ash storage practices. MP is also concerned that EPA management of CCRs under the D Prime option could force currently permitted ash handling provisions to cease and relocate ash to new storage facilities to meet stringent ground water table separation requirements. These changes would be imposed without first providing the option for facilities to demonstrate that existing ash storage arrangements are protective of the environment and s hould be allowed to continue under State Regulations. EPA should provide for means by which facilities can demonstrate how engineering and design practices can enable continued operation using existing permit, ash management plan provisions
under a D Prime approach to regulation.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory ap proach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08225

- 16 

### Organization 1 

### : Minnesota Power (ALLETE) 

### Commenter 1 : Michael G. Cashin Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 7.1.1 

### Comment Excerpt Text: Considering that the existing Minnesota State requirements already provide for good ash

manag ement practices, the benefits portion cited by EPA are being delivered in Minnesota without requiring these overlays of additional Federal regulatory stipulations and their related cost premiums. Consequently, EPA regulation that allows for continued opera tion under Minnesota and other State “well managed” programs is preferred, with regulation under EPA’s D Prime option also providing for overall good ash management practices if EPA chooses to impose Federal regulation nationwide.968

Response: The Agency i s not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 27 

### Organization 1 

### : Ohio Environmental Protection Agency 

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



### Comment Excerpt Text: If an existing CCR surface impoundment is structurally sound and the owner or operator has demonstrated it has not impacted ground water quality, then closure or installation of liners is not warranted. Ohio EPA suggests that the “D prime” approach be modified to require the owner or operator document the above within five years. Failure to document would trigger the requirement to either close or install composite liners.

Respo nse: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well a s a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 7 

### Organization 1 

### : Ohio Environmental Protection Agency 

### Commenter 1 : Chris Korleski Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: In summary, Ohio EPA believes the best approach to regulating CCR nationally is to develop minimum national regulations under Subtitle D. Further, Ohio EPA is supportive of a '"D prime" type approach to existing CCR surface impoundments as discussed in the attached detailed comments. This approach should include a U.S. EPA approved permitting program that can be administered by states.969

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08244

- 33 

### Organization 1 

### : Edison Mission Energy, LLC 

### Commenter 1 : Basil G. Constantelos Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: B. A Revised Subtitle D Approach Should Impose Requirements That Are In Line With The Level Of Risk Actually Posed By CCR Disposal Sites
1. C CR Disposal Facility Design And Construction Standards Should Only Apply To New Facilities And Should Not Be Applied Retroactively And Existing Facilities Should Be Permitted To Operate For The Remainder of Their Useful Lives As explained in Section III.D above, the real risks posed by existing CCR disposal sites are nowhere as extreme as those presented by EPA in the Proposed Rule, as those risks are based on the results of overly conservative modeling. Since EPA used its modeling to develop its Subtitle
D approach, EME submits EPA should revisit its proposal based on more realistic estimates of risk and then work with the states to implement revised standards or their equivalent as may be developed by the states. EME believes that the net result of such a re

- evaluation would be the conclusion that design and construction standards do not need to be applied retroactively. The cost of retrofitting an existing facility to meet design and construction standards are much higher than constructing a new facility t o those standards, because in the latter case the facility can be designed from the ground up to meet the new standards. Retrofits should only be required when/where the existing operations are not protective of human health or the environment. In sum, EME believes that EPA should adopt its Subtitle D* approach as outlined below. The “D*” approach differs from EPA’s Subtitle D alternative because it grandfathers in existing CCR disposal facilities. Under “D*,” existing facilities will be permitted to operat e for the remainder of their useful lives without having to undertake extensive and costly upgrades (e.g., the installation of composite liners). [Footnote 331: 75 Fed. Reg. at 35,210.] As the data indicates, typical groundwater exposures at existing dry l andfills, whether lined or unlined, do not present a human health or environmental concerns because the metal leaching that does occur at such sites is: (i) generally at low levels, (ii) does not impact deeper drinking water sources, and (iii) in all insta nces those metals that do leach out move offsite, toward potential receptors, very slowly (e.g., EPA’s own estimates shows that peak concentrations do not occur for thousands of years). [Footnote 332: The same factors indicate that EPA should treat short

- t erm storage ponds differently from permanent ponds, and that the former should be permitted to operate for the remainder of their useful lives. See Section III.D.] Based on these considerations, EME believes it would be unreasonable for EPA to require retr oactive upgrades of existing facilities unless the Agency (or a state) has site

- specific data indicating that a particular site970

poses a risk to human health or the environment. While EPA already has the authority it needs to
collect such information and or der the necessary corrective actions, [Footnote 333: Under 42 U.S.C. § 6927, “any person who generates, stores, treats, transports, disposes of, or otherwise handles hazardous waste shall, upon the request of [EPA or an authorized officer], furnish
informa tion relating to such wastes.”(emphasis added). 42 U.S.C. § 6983 instructs the Administrator to “develop, collect, evaluate, and coordinate information on” a broad range of solid and hazardous waste issues, including, but not limited to, collection, manage ment, and reduction of solid and hazardous waste.] EME agrees that existing landfill sites should be required to have groundwater monitoring and periodic integrity inspections to verify that no such impacts or potential impacts are occurring. EME also agre es that existing disposal units should provide, if they are not already required to do so, financial assurance where closure and post

closure care are required. [Footnote 334: Per the terms of its solid waste permits, EME currently provides financial assur ance for its coal ash landfill in Pennsylvania and its CCR disposal quarry in Lincoln, Illinois. EME monitors groundwater at both sites.] EME believes that the same approach applies to existing surface impoundments used for disposal

– i.e., the risks assoc iated
with these facilities are site

- specific and not germane to that class of disposal facility. Moreover, EPA’s April 2010 risk assessment already identified the 80 surface impoundments of potential concern, and therefore already knows which sites need a closer review and potential mitigation

measures. A Subtitle D* approaches is supported by EPA’s RIA. In the RIA, EPA calculates the benefit

- to

cost ratio for the Proposed Rule using three different scenarios

– Scenario 1 assumes the Proposed Rule regulati on will increase beneficial reuse of CCRs; Scenario 2 assumes the Proposed Rule negatively impacts beneficial reuse; and Scenario 3 assumes the Proposed Rule has no effect on beneficial use. [Footnote 335: The other cost/benefits assumptions that go into

e ach of these scenarios are the same.] As explained in Section III.F above, Scenario 1’s assumption about increased beneficial reuse is implausible (particularly if the Agency adopts the Subtitle C approach). Similarly, Scenario 3 (no effect) is equally unl ikely under a Subtitle C approach. While EPA’s estimates of net benefits are highest where it regulates under RCRA subtitle C, that conclusion is premised on Scenario 1’s assumption that such regulation will have a positive impact on beneficial reuse. [Foo tnote 336: EPA’s net benefits calculation rests on the utterly implausible assumption that a Subtitle C listing will increase beneficial use of CCRs.] Thus, setting aside Scenario 1 for being unrealistic, it is notable that under Scenarios 2 and 3,
where E PA assumes regulating CCRs will have either a negative effect on beneficial use or no effect at all, net benefits are no longer highest under a Subtitle C approach, and instead are highest for the “D*” alternative. Under Scenarios 2 and 3, net benefits are lowest where CCRs are listed under Subtitle C. [Footnote 337: RIA 194

- 96. Assuming regulations decrease the beneficial use of CCRs (Scenario 2) or have no effect at all on beneficial use (Scenario 3), net benefits under Subtitle C reflect are negative. Lo sses range from $236,196 to $251,166 under Scenario 2 and from $2,647 to $17,617 under Scenario 3. By comparison, net benefits under Subtitle “D prime” range from gains of $724 to losses of $2,666 under Scenarios 2 and 3.] Even more telling than the net be nefits calculated in the RIA, the benefit

- to

- cost ratio of the three regulatory alternatives provides an even more useful metric for assessing the cost effectiveness of the various proposals. From a benefit

- to

- cost ratio perspective, the most favorable rat ios are found for the subtitle “D*” approach, [Footnote 338: RIA 192. Benefit

- to

- cost ratio under Subtitle C regulation ranged from 4.286 to 5.022, while under Subtitle “D prime” it ranged from 4.33 to 5.37.] and is even more pronounced when the reduction in beneficial reuse is factored in.971

[Footnote 339: RIA 194. Negative ratio for Subtitle C ranging from

- 11.343 to

- 10.607. Positive for Subtitle “D prime,” from .182 to 1.222. RIA 196. .134

- .870 for Subtitle C and .182

- 1.222 for Subtitle “D prime.”]
In add ition to Scenarios 1 through 3, the RIA evaluated a fourth alternative proposal that was not one of those proposed by EPA, but for which the Agency nevertheless seeks comment. This fourth alternative roughly tracks EME’s proposal. It would be based on EPA’ s subtitle D authority. Under this approach, composite liners would be mandated for new landfills and groundwater monitoring standards would be required for all facilities, as well as requirements for corrective action, closure, and post

- closure care. Exis ting surface impoundments and other CCR disposal facilities would continue for the remainder of their useful lives, while EPA (or the states) would conduct periodic structural stability assessments of existing disposal facilities relying on criteria develo ped by the U.S. Army Corps of Engineers to rate the hazard potential of existing impoundments. For those identified by the criteria as having a high or significant hazard potential, EPA (or the states) would rely on its existing enforcement authority under RCRA, CERCLA, and/or the Clean Water Act to require facilities to redress the issues identified with their surface impoundments. [Footnote 340: 75 Fed. Reg. at 35210.] Under this approach annual monitoring costs would be $3.4 million annually compared to $876 million if it were to proceed with its proposal to phase out surface impoundments entirely. [Footnote 341: 75 Fed. Reg. at 35210.] The data in the administrative record clearly illustrate the cost effectiveness of adopting a regulatory alternative tha t permits existing disposal facilities to operate for the remainder of their useful lives. As explained above, EME recommends that EPA adopt a modified version of its “D*” proposal. Allowing existing facilities to continue to operate for the remainder of t heir useful lives without forcing them to implement costly and unnecessary retrofits, subject to prudent compliance, monitoring and financial assurance requirements, will permit EPA to protect human health and the environment while maximizing the net benef its of the CCR Rule by reducing the financial burdens associated with it to levels that are in accordance with the actual risks posed by CCR disposal sites

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08245

- 4 

### Organization 1 

### : Sphere One, Inc. 

### Commenter 1 : Ryan M. Brownhill Commenter Type: Beneficial User
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Te xt: Sphere One strongly urges the EPA to enact the Subtitle D Prime ruling. The engineering standards are the same in both Subtitle C and D. Needed protections to human health and the environment will be accomplished without unnecssarily stigmatizing CCP's . Everyone acknowledges the huge benefits, both enviromental and economic, that are achieved in the recylcing of CCP's. Based on all current scientific data, cenospheres are completely safe and in972

no way warrant a hazardous waste label. The EPA cannot be c ertain that a Subtitle C ruling won't impact reuse. The very people who deal in the markets every day are unanimous in their position that it will have a devastating effect. We are the experts in this market, and every one of us disagrees with the EPA's as sesment. It would be irresponsible for the EPA to ignore all the industry comments and assume their assmuptions are correct. Subtitle D prime will ensure that CCP's are safely managed while continuing to promote and expand their beneficial use.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08247

- 1 

### Organization 1 

### : Tucson Electric Power Company 

### Commenter 1 : Erik Bakken Commenter Type: Electric Utility Company
Classification: Substantive
Co mment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: EPA SHOULD ADOPT THE SUBTITLE D “PRIME” OPTION, WITH APPROPRIATE ADJUSTMENTS, AND COORDINATE IMPLEMENTATION OF THE SUBTITLE D
REGULATIONS WITH THE STATES

TEP supports the development of Subtitle D “Prime” non

- hazardous waste regulations for CCRs. The Subtitle D “Prime” option, with adjustments, will allow EPA to establish an environmentally protective program for coal ash disposal units without crippling co al ash beneficial use and imposing unnecessary regulatory costs on power plants, threatening jobs, power reliability, and increasing electricity costs. TEP?s Springerville Generating Station (SGS) is a four

- unit coal

- fired, steam electric generating
facil ity with a combined net generating output of approximately 1,560 Mw. SGS?s annual fly ash production is approximately 1,100,000 tons per year. Approximately 50,000 tons of CCRs per year from our Irvington Generating Station?s (IGS) Unit 4 is transported to the SGS landfill. The SGS and IGS CCRs are landfilled in a permitted ash landfill located at the SGS facility. The ash landfill is of bench and crest design and it is currently permitted under the Aquifer Protection Permit (APP) for 400 acres. Potential l eachate from the landfill is being monitored at a point approximately 10 feet into the Chinle clay formation. To date, all seepage wells have been dry. The SGS?s Aquifer Protection Permit (APP) # P

- 101448 was last modified in 2009 by the Arizona Department of Environmental Quality (ADEQ).

Shaw Environmental, Inc. prepared a study “Coal Combustion Residuals Proposed Impact Study (November 2010)” for TEP to evaluate the impact of the proposed CCRs regulations on TEP?s973

SGS located near Springerville, Arizona . The study concluded the following: for SGS the estimated cost of a Subtitle C program over 30 years would be approximately $283,000,000 while the Subtitle D program over 30 years would cost $161,000,000 and a Subtitle D program
that allows alternative li ner system would cost $103,000,000. At SGS, the Subtitle D program with an alternative liner system would provide equivalent protection as a Subtitle C program, while providing cost savings of $180,000,000. The development of Subtitle D regulations with
al ternative liner system based on site specific conditions (e.g., depth of groundwater, annual rainfall, distance to drinking water sources, soil type and permeability) would be the appropriate outgrowth of EPA?s two Reports to Congress and two final Regulat ory Determinations under the Bevill Amendment declaring that CCRs do not warrant hazardous waste regulation under RCRA Subtitle C, but rather should remain the province primarily of state regulatory programs under
RCRA Subtitle D. Under Arizona law, CCR s urface impoundments, pits, ponds, lagoons, and landfills are considered “discharging” facilities which require an APP. ADEQ?s robust APP program is designed to protect Arizona?s scarce drinking water resources. ADEQ uses the Arizona Pollution Discharge El imination System (AZPDES) to protect surface waters and Aquifer Protection Permits (APP) to safeguard Arizona's waters from pollutants that come from an identifiable source. These permits protect groundwater and surface water quality by controlling dischar ges from industrial facilities such as SGS. The approval of the SGS individual APP was a rigorous and time intensive process. The SGS APP application was completed by professional environmental staff, and then reviewed by ADEQ?s professional staff. ADEQ?s review of the APP application determined that all requirements were achieved and the permit was issued. The most critical requirements of the permitting process include the “best available demonstrated control technology” (BADCT), a demonstration that Aqui fer Water Quality Standards (AWQS) will not be violated in the aquifer at a point of compliance due to an inadvertent discharge at SGS. In addition, ADEQ?s professional staff completed a technical review of the entire application and the method chosen by S GS for providing financial assurance. TEP agrees with EPA?s two Reports to Congress and two final Regulatory Determinations under the Bevill Amendment, in that individual State regulatory program such as ADEQ?s AZPDES and APP programs are more than capable of achieving full protection of the environment and human health. It is essential that any final Subtitle D rules for CCRs include a mechanism for qualified state programs to administer the rules.

As previously mentioned, the APP permitting process is v ery rigorous and time intensive process. The process requires that applicants provide a demonstration that the BADCT will be used to ensure the greatest degree of discharge reduction from the facility and that the AWQS
will not be violated as a result of i nadvertent discharges from the facility. In addition, the applicant must demonstrate in cases where the level of pollutant in the aquifer already exceeds the AWQS at the time of permit issuance, that the aquifer will not be further degraded by the facility . The applicant is required to demonstrate that it has the necessary financial and technical capability to operate and close the facility in accordance with APP requirements. As you can see the APP is a robust program that should remain the principal autho rity for regulating CCRs.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a974

complete discussion of the regulatory app roach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08253

- 29 

### 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: 5.6.4 

### Comment Excerpt Text: Adequacy of RCRA

- D Prime Option: We strongly agree that the RCRA Subtitle D

- Prime option is adequately protective of human
health and the environment. We note that EPA has been performing structural integrity and safety assessments of the surface impoundments identified in the 2009 CCR Surface Impoundment ICR and as of this writing none have been found to be unsatisfactory. We point to our Sherbume County (Sherco) generating plant as an example of welt

- designed and well operated surface impoundments that received the highest possible rating for safety from EPA's engineering contractors after the 2009 assessment. The CCR disposal ponds at this facility are designed, constructed and inspected as dams, are equipped with liners and groundwater monitoring systems and are operated under state issued NPDES permits under a rigorous process that includes professional engineering certification o f the design as well as independent state review an public notice as part of the permitting process. These ponds are also equipped with dewatefing systems and are designed to be permanently capped and closed when full, in the manner of a landfill, under th e state solid waste program. All aspects of the facility are designed and operated under close state regulatory oversight with protection of human health and the environnaent in mind. These ponds are an example of the type of modern, state of the art dispo sal facility that would arbitrarily be forced to close prematurely absent the D

- Prime option. This would force not only the construction of alternate (but not environmentally superior) dry

disposal facilities, but also the complex and costly conversion of a well performing wet particulate & SO2 emission control system to a dry control system. We also note that under D

Prime, existing CCR impoundments that do not already have ground water monitoring systems installed would be required to do so, and that all impoundments (as well as landfills) located in flood plains or unstable areas would need to close unless it can be shown that continued operations are be safe. This would ensure that any CCR impoundments having previously undetected environmental impacts o r other design deficiencies would be identified so that
corrective action can be taken

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.975



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08253

- 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: 11.2.2 

### Comment Excerpt Text: 3 Alternative Regulatory Approaches Mentioned in the Preamble:

As noted previously, we strongly support further development and adoption of the Subtitle "D

Prime" option. We would not be opposed to the alternative that allowed individual states the option to first develop enforceable state rules under RCRA

- D, similar to the MSW rules. We would, however, strongly oppose any automatic fall

- back to a federal RCRA

- C program for CCRs if the state failed to act in a timely manner or EPA failed to approve a state plan as submitted, for the reasons provided throughout these comme nts regarding the problems with a
RCRA

- C approach. We would similarly oppose any alternative discussed that involves RCRA

- C regulation in any form as part of the alternative. However, we would not object to a RCRA

- D Prime program that permitted EPA to enfo rce a federal RCRA

- D rule in the event a state failed to meet its obligations.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08255

- 10 

### Organization 1 

### : LG&E and KU Energy LLC 

### Commenter 1 : Ro bert J. Ehrler on behalf of Dorothy E. O'Brien Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: VIII.Any New CCR Program Should Be Promulgated Under Subtitle D and Administered by the States Under EPA Oversight.

LG&E/KU urges EPA to promulgate any new CCR rules under a Subtitle D approach. LG&E/KU specifically supports the D Prime option, with prop er adjustments, that would allow existing surface impoundments that meet the proposed performance standards to operate until the end of their useful lifetimes. Continued operation of existing surface impoundments and landfills that meet appropriate perform ance standards would substantially mitigate the cost of complying976

with a new Subtitle D CCR regulatory program. Requirements for groundwater monitoring and corrective action, as necessary, will ensure that existing surface impoundments do not result in
har m to the environment. It would serve no legitimate purpose to mandate the closure of existing surface impoundments or landfills which pose no threat to the environment.

LG&E/KU requests that EPA fully analyze its authority under Subtitle D to establish a regulatory framework providing for state implementation of the CCR program under the oversight of EPA. LG&E/KU believes that it is critical to establish a regulatory framework that builds on existing state CCR programs, such as the existing program admini stered by Kentucky, and allows the states to administer the new CCR program. Any program established by EPA should prevent inconsistency and duplication between state and federal CCR programs and avoid impractical regulatory mechanisms such as a “self

- impl ementing” program. LG&E/KU is confident that EPA can identify sufficient authority under Subtitle D to establish a CCR program that provides for rational and efficient regulation of CCR surface impoundments and landfills

Response: The Agency is not promul gating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive

discussion o f the technical requirements of the rule.

T he commenter is further referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08258

- 3 

### Organization 1 

### : Heartland Consumers Power District 

### Commenter 1 : Eli D. Eilbott Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Heartland believes that the D Prime option provi des the most appropriate balance of EPA’s interests in protecting human health and the environment, promoting the legitimate reuse of CCRs and not imposing unnecessary or excessive costs on the generation and consumption of electricity in this country.

Re sponse: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as wel l as a comprehensive discussion of the technical requirements of the rule.977



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08258

- 8 

### Organization 1 

### : Heartland Consumers Power District 

### Commenter 1 : Eli D. Eilbott Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: At the same time, Heartland does support the D Prime option. Imposition of Subtitle D controls would provide more than adequate protection of human health a nd the environment for those CCRs that are placed in disposal units, while the D Prime provision reasonably would allow existing surface impoundments to continue to operate, and accept CCRs, for their useful life without having to close or install composit e liners.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is a dopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08266

- 4 

### 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:



### Comment Excerpt Text: Based upon review of the EPA proposals, WEST Associates supports the regulation of CCR under the Subtitle D “Prime” option with some important revisions. The Subtitle D “Prime” option avoids a flaw contained in the alternative Subtitle D option, which is the arbitrary requirement to retrofit all surface impoundments irrespective of their environmental performance. The Subtitle D “Prime” option correctly recognizes that existing CCR impoundments could be allowed to continue operating, provided they meet applicable groundwater monitoring standards to ensure performance in an environmentally sound manner. The Subtitle D “P rime” option would include all the components of the main Subtitle D option with the exception that the CCR surface impoundments could continue to operate for the
remainder of their useful life.

The Subtitle D “Prime” controls are largely the same as the proposed Subtitle C controls and978

provide a high level of protection to human health and the environment. Both a Subtitle C and Subtitle D standard correspond to an acceptable level of risk as established by the EPA. It is
further noted that the Subtitle D “Prime” option would provide the same level of protection to human health and the environment as the Subtitle C option (i.e., both options being within EPA’s acceptable risk range). The Subtitle D “Prime” option also requires existing CCR surface impoundm ents to continue to be subject to groundwater monitoring and corrective action. Therefore, it has been suggested in previous industry testimony that the Subtitle D “Prime” option offers the same range of protection as the other proposals without the same s ignificant and costly economic impacts.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08840

- 13 

### Organization 1 

### : Electric Power Generation Association 

### Commenter 1 : Douglas L. Biden
Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: v. The Preferred Alternative: Subtitle D Prime Option

As mentioned previously, EPGA believes that regulation of CCR s under RCRA Subtitle D is the appropriate regulatory scheme and is consistent with the rulemaking record. In fact, EPGA believes that the additional option offered for discussion and comment by EPA in this proposed rulemaking, the "Subtitle D Prime" optio n, is the best choice. Under this alternative option, "the regulations would not require the closure or installation of composite liners in existing surface impoundments; rather, these surface impoundments could continue to operate for the remainder
of the ir useful life. New surface impoundments would be required to have composite liners. The
other co

- proposed subtitle D requirements would remain the same." 75 Fed. Reg. at 35210. EPGA believes that existing surface impoundments that are operating in a safe and effective manner, and especially those that are currently operating under existing state authorities, should not be required to either be dredged completely and have a liner installed, or close. The cost of this over regulation of existing impoundments that have not exhibited signs or evidence of contamination or safety issues is not justified by EPA in this rulemaking. Those impoundments that already have or would be installing groundwater monitoring, as a requirement of the proposed rules, would conti nue to be protective of public health and the environment, and any future degradation would be detected through the groundwater monitoring and corrective action process, and would be remedied through the authorized state program. Further, additional

struct ural integrity inspections, required to be implemented under the new rules, would insure that safety concerns were addressed for existing facilities. No additional protection would be979

achieved by the additional expenditures of dredging and lining, or by ha ving to locate a new disposal facility to replace a closed impoundment

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule fo r a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08847

- 18 

### Organization 1 

### : Center for Progressive Reform, University of Maryland School of Law 

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



### Comment Excerpt Text: How the RIA Derives the Costs and Benefits of the Weakest Opt ion

Finally, just as the RIA obtains the costs and benefits for the weak option by scaling down the estimates for the strong option by a certain amount, it obtains the benefits for the weakest option (subtitle “D prime”) by scaling down the estimates for the weak option. The weakest option is just like the weak option, except it would not require existing surface impoundments to close or install composite liners, instead allowing them to operate for the rest of their useful lives. [Footnote 349: Disposal o f Coal Combustion Residuals from Electric Utilities; Proposed Rule, 75 Fed. Reg. at 35,134.] The RIA assumes that the benefits of the weakest option will fall somewhere in between the benefits of the weak option and the baseline scenario.

In lieu of any s ophisticated estimation, the RIA simply calculates the benefits of the weakest option as the midpoint values between the weak option and the baseline. [Footnote 350: Final Draft RIA, supra note 8, at 124, 141, 198

- 203.] Thus, the RIA concludes that the wea kest option will avoid 30 percent of cancers and 23 percent of impoundment

- failure cleanup costs. [Footnote
351: Id. at 199.] It justifies this conclusion by predicting that states will in fact impose requirements on existing impoundments that go beyond th e scope of the federal standards, due to the mere “presence of a new national rule accompanied by EPA support.” [Footnote 352: Id. at 124.] The absurdity of such an assumption speaks for itself.

But more importantly, the simple midpoint calculation for th e weakest option, combined with the lack of attention given to the option throughout the proposed rule and the analysis, confirms that the weakest option is presented only to make the weak option look like the moderate choice. Not only does the weak option avoid the disastrous stigma on beneficial use that plagues the strong option, and thus provide a much safer and more predictable range of net benefits, but it also provides substantially greater benefits than the barely

- discussed weakest option. Thus, the scaling and comparison of the regulatory options puts the finishing touches on the RIA‘s relentless campaign to drive the decision toward the weak option980

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08848

- 10 

### Organization 1 

### : American Coalition for Clean Coal Electricity (ACCCE) 

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



### Comment E xcerpt Text: Accordingly, ACCCE strongly supports the D

- Prime option, which would allow existing CCR surface impoundments to continue operating for the remainder of their useful lives when they are shown to be protective of groundwater and surface water. The D

- Prime op tion correctly recognizes that existing CCR impoundments could be allowed to continue operating, provided they meet applicable groundwater monitoring standards to ensure that these units are performing in an environmentally sound manner.

Response: The A gency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a compreh ensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08848

- 2 

### Organization 1 

### : American Coalition for Clean Coal Electricity (ACCCE) 

### Commenter 1 : Paul Bailey Commenter Type: Advocacy Group
Classification: Substant ive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: As discussed below, this alternative can adequately address any environmental risks that might result from the disposal of CCRs, while avoiding the many difficulties of regulating CCRs as a hazardous waste under Subtitle C of RCRA. In addition, the D

- Prime option correctly recognizes that existing CCR surface impoundments should be allowed to continue operating, provided they pose no unacceptable human health or envir onmental risks and meet applicable regulatory standards to ensure their continued performance in an environmentally sound manner.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a981

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08865

- 5 

### Organization 1 

### : Geosyntec Consultants 

### Commenter 1 : John Seymour Commenter Type: Other Company
Classification: Substantive Comment Category:
Cu rrent Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

Subtitle D Prime

Geosyntec supports the Subtitle D Prime proposal over the other proposals because the Subtitle D Prime proposal allows existing ash ponds to continue operating until their permitted disposal capacity has been reached, rather than be taken out of operation and retrofitted with a composite liner or be closed prematurely. We believe that this is the best regulatory approach, and the most practical approach, for the following r easons:

1. Many existing ash ponds have been successfully operated for years or even decades. If a pond has been in compliance with applicable groundwater protection standards and its containment dikes/dams are shown to be structurally sound and stable a gainst slope failure, then there is no technical reason that the pond should be forced to close before the end of its useful life.

2. Closing these ponds (which are often very large, regularly larger than 100 acres) and securing alternate disposal capaci ty could easily take longer than the 7

- year period required under the Subtitle D and Subtitle C proposals for pond closure. Permitting alternate disposal options alone can take 2 to 4 years. Under the Subtitle C proposal, the permitting requirements are gr eater and are expected to take longer than the Subtitle D proposals.

3. In 1991, when the U.S. EPA approved the Subtitle D regulations for municipal solid waste landfills, it allowed existing facilities to be operated until their permitted disposal capac ity had been reached, and did not mandate premature closure of such facilities. U.S. EPA reasoned that it was not in the nation’s best interests to prematurely close these landfills but, instead, should manage threats to the environment from these landfill s through operational, monitoring, and post

- closure care provisions. Geosyntec believes that the same logic can be applied to CCB ponds.

In conclusion, prematurely closing a CCR disposal facility that is managed appropriately and is in regulatory compli ance puts an unnecessary burden on the facility owner and the electricity customers that will pay for the closure and new facility costs without a commensurate benefit to the environment. The Subtitle D prime option allows site specific conditions to enabl e operation of the facility until the end of its useful life and protect human health and environment982

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 4 

### Organization 1 

### : Prairie State Generating Company, LLC (PSGC) 

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



### Comment Excerpt Text: Furthermore, the Subtitle D Prime option would enable EPA to establish an environmentally protective program without crippling CCR beneficial use and impos ing unnecessary costs, threatening jobs and increasing electricity costs

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rul e for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 50 

### Organization 1 

### : Prairie State Generating Company, LLC (PSGC) 

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



### Comment Excerpt Text: The Subtitle D Prime option, with the modifications discussed below , will allow EPA to establish a robust and environmentally protective program for coal ash disposal units without crippling coal ash beneficial use and imposing unnecessary regulatory costs on power plants, threatening jobs, power reliability, and increasi ng electricity costs.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approa ch EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.983



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09265

- 4 

### 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 recognizes and supports responsible handling of CCRs and recognizes the need to address safety issues and environmental protection requirements for CCR surface impoundments and landfills. To that end, CPS Energy supports the D

- prime option or, in the alternative, anyone of several variations., but cannot support the EPA's other co

- proposed options. The D

- prime option allows continued use of existing impoundments and landfills in support of CCR recycling . CPS Energy believes that the D

- prime option provides adequate health and environmental protection due to the groundwater monitoring, corrective action and dam safety requirements
sti pulated in D prime. Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09273

- 8 

### Organization 1 

### : Iowa Department of Natural Resources (IDNR) 

### Commenter 1 : Wayne Gieselman Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.4.1.4.6 

### Comment Excerpt Text: EPA Has Contradictory Position On Landfill Design. The Agency notes that recent risk

assessments show CCR disposed of in unlined landfills and surface impoundments presents substantial risk to human health and the environment from releases of pollutants into surface and groundwater. Research also shows those risks are essentially eliminated when the C CR is disposed of in units with composite liners. Yet, the Agency has put forth a "D

- Prime" approach that would not require existing surface impoundments to close or install composite liners. Instead, they could continue to operate for their useful life. T his contradictory position only heightens states' apprehension regarding the Agency's justification of a Subtitle C approach.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is ref erred to Units V and VI of the preamble for this rule for a984

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09274

- 13 

### Organization 1 

### : RRI Energy Inc. 

### Commenter 1 : S. Dixon Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: V. The Preferred Alternative: Subtitle D Prime Op tion

As mentioned previously, RRI believes that regulation of CCRs under RCRA Subtitle D is the appropriate regulatory approach and is consistent with the rulemaking record. In fact, RRI believes that the additional option offered for discussion and comme nt by EPA in this proposed rulemaking, the "Subtitle D Prime" option, is the best choice. Under this alternative option, "the regulations would not require the closure or installation of composite liners in existing surface impoundments; rather, these surf ace impoundments could continue to operate for the remainder of their useful life. New surface impoundments would be required to have composite liners. The
other co

- proposed Subtitle D requirements would remain the same." 75 Fed. Reg. at 35210. RRI
believe s that existing surface impoundments that are operating in a safe and effective manner and especially those that are currently operating under existing state authorities, should not be required to either be dredged completely and have a liner installed, or close. The cost of this over regulation of existing impoundments that have not exhibited signs or evidence of contamination or safety issues is not justified by EPA in this rulemaking. Those impoundments that already have or would be installing groundwate r monitoring, as a requirement of the proposed rules, would continue to be protective of public health and the environment, and any future degradation would be detected through the groundwater monitoring and corrective action process, and would
be remedied through the authorized state program. Further, additional structural integrity inspections, required to be implemented under the new rules, would insure that safety concerns were addressed for existing facilities. No additional protection would be achieve d by the additional expenditures of dredging and lining, or by having to locate a new disposal facility to replace a closed impoundment.

Even though RRI believes that the Subtitle D Prime option is the preferred alternative, there are a
number of issues w hich we believe need to be addressed by EPA

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.985



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09282

- 28 

### Organization 1 

### : North Carolina Department of Environment and Natural Resources 

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



### Comment Excerpt Text:
The subtitle “D

- Prime” modification allows the continued operation of wet storage impoundments for the rest of their “usefu l life.” Based on the findings presented in the proposed language and current documented damage cases, these sites have a potential to cause, or are currently causing, groundwater contamination. Allowing facilities to continue operating these surface impou ndments without having to properly close them or install liners does not provide the best option for the protection of human health and the environment.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09284

- 55 

### Organization 1 

### : Virginia Department of Environmental Quality 

### Commenter 1 : Jeffery A. Steers Commenter Type: State Government
Classification: S ubstantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The "D prime" option allows surface impoundments to continue to operate for their useful life without requiring them to install composite liners. Virginia DEQ is concerned about allowing unlined surface impoundments to continue to operate without an established closure date. When the Subtitle D regulations were issued by EPA, not all landfills in Virginia were equipped with liners. In 1993, state statutes were amended to allow landfills to continue to operate until their vertical design capacity was reached and required landfills to submit an estimated date of closure which was not enforceable by the state. After many years of the continued operation of these

un lined landfills, some of these landfills were anticipating continuing operation for decades instead of their previously estimated closure date. The state statute was subsequently amended in 2000 to establish a process for assigning closure dates to these u nlined landfills. Unlined landfills were prioritized for closure based on potential threat to human health and the environment, and required to close in 2007, 2012, or 2020. Virginia DEQ's previous experience with allowing unlined landfills to continue ope ration until vertical capacity was reached causes the state to have986

concerns with the "D prime" option. EPA's proposal indicates 75% of surface impoundments are greater than 25 years old, with 10% being greater than 50 years. Allowing unlined surface impou ndments to continue operation indefinitely does not provide protection to human health
and the environment.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V an d VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 26 

### 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:



### Comment Excerpt Text: Pg. 35210, Alternative RCRA Subti tle D Approaches: The D prime option allows the continued operations of existing surface impoundments to the end of their useful life without the requirement of a composite liner. Would this also apply to existing CCR landfills?

Careful consideration shou ld be given when defining “useful life.” For example if useful life is defined as at 100% capacity a facility conceivably could maintain a management unit at 90% perpetually thus preventing the requirement for additional actions triggered at closure.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as w ell as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09346

- 10 

### Organization 1 

### : American Public Power Association (APPA) 

### Commenter 1 : Theresa Pugh Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: APPA's Qualified Support of the Subtitle D "Prime" Option987

APPA endorses USWAG's qualified support of the development of Subtitle D non

- hazardous waste regu lations for CCRs under the proposed Subtitle D "Prime" option, with certain important modifications discussed in USWAG's testimony at the EPA public hearings on this proposal and in their comments. The Subtitle D "Prime" option, with the proper adjustments , will allow EPA to establish a robust and environmentally protective program for coal ash disposal units without crippling coal ash beneficial use and imposing unnecessary regulatory costs on power plants, threatening jobs, power reliability and increasin g electricity costs. While some of USWAG's suggested modifications to the Subtitle D "Prime" proposal may necessitate issuance of a supplemental proposal, APPA supports this additional procedural step because it will help ensure promulgation of an environm entally protective regulatory program for CCRs consistent with the rulemaking record and the dictates of the Bevill Amendment.

Specifically, APPA endorses USWAG's comment that the Subtitle D Program must include a mechanism for state implementation of th e CCR rules. In addition, APPA agrees with the key problems identified by USWAG, including:

Unrealistically short closure time frames for CCR disposal units;

The unwarranted application of all location restrictions to existing CCR surface impoundments;

The inclusion of inappropriate constituents in the proposed groundwater monitoring program;

The failure to allow for alternate liner systems; and

The overly broad definition of "CCR Landfill" that inappropriately includes all "large scale fill

opera tions."

APPA also endorses the changes to the subtitle D Program outlined by the Large Public Power Council (LPPC), specifically:

APPA agrees that it is unduly burdensome to require facilities who have registered professional engineers on staff to incur the additional expense of hiring outside third parties to provide the certifications. APPA believes that a registered professional engineer on staff will provide the same unbiased services (as is a requirement of their professional standards and licensure ) as an outside professional engineer (who will still be hired and paid by the utility).

APPA agrees that in EPA's assessment of the Subtitle D co

- proposal, EPA should assume that States will adopt, implement, and enforce any national criteria performanc e standards in a timely manner. Performance criteria issued by EPA under Subtitle D should allow the States sufficient time to carry out those responsibilities. States will faithfully execute their responsibilities under the cooperative statutory framework established by Congress.

While APPA supports the adoption of non

- hazardous waste rules for CCRs under Subtitle D of RCRA, specifically the aforementioned Subtitle D "Prime" option with USWAG's modifications, we also urge EPA to modify the Proposed Rule to better reflect CCR disposal options.988

A Modified D "Prime" Option would be More Effective and Practical than the Subtitle C and Subtitle D Proposals. A modified Subtitle D "Prime" rule, if developed properly with additional state regulatory oversight p rovisions, would be the best among EPA's three approaches for the regulation of CCR material. The D "Prime" rule would fully protect human health and the environment without harmfully impacting CCR beneficial use and unnecessarily regulating power plant op erations. Regulating power plant operations would be impractical and a modified Subtitle D "Prime" will help reduce the consequential operations impacts of the proposed rule.

Modified Subtitle D "Prime" will Help Ensure that Existing CCR Facilities are S afe. The information available, including EPA's rulemaking record, show that most CCR disposal facilities function on a day

- to

- day basis as they are designed and intended. This function produces no adverse impact to safety or the environment. EPA should no t disrupt disposal facilities by superimposing retrofit and shut down requirements based on nonspecific, federally imposed standards without regard to in situ conditions. If EPA identifies a specific basis to conclude particular facilities are not performi ng adequately, EPA should focus its efforts on upgrading or closing those facilities, but EPA should allow others to continue to operate. Any new federal standards should be consistent with industry best practices. As such, EPA should also acknowledge poss ible security issues and information risk involved in the publication of structural integrity data and refrain from compulsory, universal publication of structural integrity
information.

Modified Subtitle D "Prime" Can Give EPA the Opportunity to Include Adaptive Approaches for Safety and Environmental Protection. The possible variables at any given location are infinite. It is not sensible to dictate, centrally and in advance, how exactly a particular plant should address specific issues at a given site. Under those terms probability of an inefficient solution is high. Plant operations, local geology, subsurface hydrology, precipitation patterns, proximity to populations and other potential receptors, and other factors can vary extensively from site to si te. A modified Subtitle D standard could give the EPA opportunity to account for site

- specific conditions. Subsequently, EPA should allow professionals that are trained to assess and respond to those issues to do their jobs in accordance with the best avai lable scientific information and best industry practices. A federalist approach over

- centralizes particular standards and practices that would make CCR management and disposal more expensive and difficult and, consequently,
less effective.

Subtitle D "Pr ime" is Consistent with Overall EPA Waste Management Goals. The EPA Should Continue Supporting Beneficial Uses. Beneficial CCR use is positive. It avoids the environmental impacts of placing materials in a landfill and mining naturally occurring materials as a substitute. Historically, EPA has been an active supporter of cooperative efforts to safely and effectively use CCRs. Accordingly, CCRs have been used beneficially for road building, agriculture, wallboard and many other purposes. The Leadership in En ergy and Environmental Design (LEED) green building certification program, a premier promoter of sustainability in building design, awards substantial points for the use of materials made out of beneficially reused CCRs [Footnote 16: http://chapters.usgbc. org/montana/documents/MissoulaFCULEEDSheet

- smal'.pdf]. EPA should listen to the voices of the experts and researchers who have studied the impacts of beneficial reuse. EPA should continue supporting safe and effective beneficial uses of CCRs and not list989

C CRs under EPA's hazardous waste authority. APPA believes that beneficial reuse is consistent with the EPA waste management hierarchy dating back to 1986

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule. The commenter is referred to the discussion in Unit VI of the preamble for a description of the technical requirements of the rule and how these requirements relate to the commenter’s con cerns.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09349

- 3 

### Organization 1 

### : Santee Cooper 

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



### Comment Excerpt Text: The Subtitle D Prime option, with modifications, will allow EPA to establish a robust and environmentally protective program for coal ash disposal units without crippling coal ash beneficial use and imposing unnecessary regulatory costs on power plants, threatening jobs, power reliability, and increasing electricity costs.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for thi s rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09349

- 36 

### Organization 1 

### : Santee Cooper 

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



### Comment Excerpt Text: Santee Cooper therefore urges EPA to adopt the D

- prime option, which would allow existing
CCR surfa ce impoundments to continue to operate for the remainder of their useful lives without having to retrofit to meet the liner requirement. The D

- prime option would be adequately protective of human health and the environment, because existing CCR surface imp oundments990

would be subject to design and operating requirements proposed for new CCR surface impoundments.

Importantly, those requirements include the new groundwater monitoring requirements, which would ensure that any releases to groundwater are detecte d, and the new corrective action requirements, which would ensure that any such releases are properly remediated. In effect, the
D

- prime option would accomplish a site

- specific evaluation of all existing CCR surface impoundments, and would tailor enforceme nt responses (including possible closure) to those units that actually present a current or potential threat to groundwater resources.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09349

- 7 

### Organization 1 

### : Santee Cooper 

### Commenter 1 : Jay Hudson Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
C urrent Task: Examine Context Assigned/Due:



### Comment Excerpt Text: If CCRs are regulated under Subtitle D, it is recommended that the "D Prime" approach be adopted because the other co

- proposed subtitle D requirements would remain in effect, including
thos e that address stability and groundwater quality, both of which were the major impetus behind the proposed rule. Under the "D Prime" approach, all existing surface impoundments still would be required to demonstrate stability in accordance with section 257 .64 (unstable areas), or else close within five years after the effective date of the final rule in accordance with section 257.65. Additionally, groundwater monitoring and corrective action procedures for existing surface impoundments would have to be imp lemented within one year after the effective date of the final rule, in accordance with sections 257.90 through 257.98.

The D Prime approach therefore will focus the financial resources of owners and operators on closing existing higher

- risk surface impou ndments, rather than resulting in across the board costs to either retrofit or close all surface impoundments without regard to whether such measures are necessary for the continued protection of human health and the environment. Further, the D Prime appro ach would lessen the degree to which the overall available capacity for CCR disposal will be impacted in the near term.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.991



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09351

- 9 

### Organization 1 

### : West Virginia Manufacturers Association (WVMA) 

### Commenter 1 : Karen S. Price Commenter Type: Trade Association
Classification: Sub stantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: Instead, EPA should follow

- through on its 1993 and 2000 Regulatory Determinations and develop non

- hazardous waste rules for CCRs under RCRA's Subtitle D program that recognize and do not duplicate existing state controls for these materials.

The preferable option is to adopt the Subtitle "D prime" option, which provides the greatest flexibility while still enhancing environmental protect ion. The EPA would have the appropriate authority to deal with out

- of

- compliance storage sites that fail to deal with water quality issues. Sites that operate well and in compliance could continue to provide economic storage options. As importantly, the be neficial use of coal ash would be maintained. The Subtitle "D prime" option is the most cost

- efficient approach and will assure appropriate water quality.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the prop osed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- H Q

- RCRA

- 2009

- 0640

- 09426

- 5 

### Organization 1 

### : Wisconsin Public Service 

### Commenter 1 : Connie K. Lawniczak Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

SUPP ORT SUBTITLE D PRIME Wisconsin Public Service supports the development of Subtitle D non

- hazardous waste regulations for CCRs under the proposed Subtitle D “Prime” option, although with certain important modifications discussed below. The Subtitle D Prime option, with the proper adjustments, will allow EPA to establish a robust and environmentally protective program for coal ash disposal units without crippling coal ash beneficial use and imposing unnecessary regulatory costs on power plants, threatening jo bs, power reliability, and increasing electricity

costs.992

There is no question that the Subtitle D Prime option would be fully protective of human health and the environment. Many of the Subtitle D option’s substantive requirements

– including those
under S ubtitle D Prime

– are the same as those under the Subtitle C option, including the technical and design standards for CCR liner systems, groundwater monitoring and associated corrective action, and surface impoundment integrity standards. Given that the Su btitle D Prime’s substantive controls are patterned in large part on the proposed Subtitle C controls, the overall level of protection to human health and the environment are equivalent under both options. Therefore, the Subtitle D Prime option would provi de the same level of protection to human health and the environment as the Subtitle C option without the corresponding adverse impacts of the Subtitle C approach. While Wisconsin Public Service supports the Subtitle D Prime option, a major shortcoming of

t his approach, as well as with the other Subtitle D alternatives, is the lack of any mechanism for qualified state programs to step in and directly administer the Subtitle D CCR regulations where the state programs meet or exceed the federal controls. Such an approach makes no practical sense, as it would result in parallel and redundant regulatory programs for the same materials and, more importantly, would directly contravene the Bevill Amendment’s directive that EPA avoid duplication of effort with pre

- ex isting regulatory programs. EPA has previously recognized this point, as one of the Agency’s primary reasons for concluding in its 2000 final Regulatory Determination that CCRs do not warrant Subtitle C regulation was Congress'
admonition in the Bevill Ame ndment against duplication of efforts by other federal and state agencies. 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. 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 u nder 40 C.F.R. Part 258). In those states that have qualifying controls for CCRs, EPA would allow the states to administer the controls to avoid the duplication of regulatory programs, with appropriate EPA backup. In this way, many of the self

- implementing procedures in the Subtitle D approach could be eliminated as there would be a qualified state regulatory body with responsibility for ensuring compliance with the applicable requirements. This approach would allow for the requisite degree of state
involve ment 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. For the reasons discussed above, of the options presented, Wisconsin Public Service only supports regulation of CCR material under the proposed EPA Subtitle D Prime option, but with State authority and rules.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.993



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09618

- 3 

### Organization 1 

### : Waste Permits Division, Louisiana Department of Environmental Quality (LDEQ) 

### Commenter 1 : Don Caffery Commenter Type: State Gove rnment Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: For the most part, the standards for design and construction, groundwater monitoring, etc. in the proposed 40 CFR 257 Subpart D appear to follow a reasonable, commonsense approach toward preventing a reoccurrence of another Kingston incident. Specifically, the "D

- prime" option would phase in the requirement for synthetic liners gradually, and would avoid the enormous, virtually immediate economic impact of a 5

- year deadline. Again, we suggest that permitted impoundments, already built to engineering standards, should not be penalized by being put in the same category as gravel pits. Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09728

- 1 

### Organization 1 

### : Intermountain Power Service Corporation (IPSC) 

### Commenter 1 : Jon A. Finlinson Commenter Type: Electric Utility Company
Classific ation: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: 1. IPSC supports the EPA in this significant effort to craft a workable, efficient, economically viable, and protective framework for managing and dis posing of CCR.

IPSC recognizes that due to the nation's long and proud history of advanced industrialization and power development, and the fact that most power plant sites are not as fortunately located as IPP, there have been concerns stemming from CCR disposal practices. What is striking is that given the immense volume of CCR and number of CCR locations, there has not been an environmental impact beyond the few small instances of record. IPSC believes this in and of itself points to the generally non

- hazardous nature of CCR and the generally innocuous disposal practices of years past.

Of obvious concern is the impact from failures such as the TVA's Kingston spill. We believe that although a tragedy, it was not the "toxicity" or any other hazardous wa ste

- like characteristic994

(ignitability, corrosivity, or reactivity) of CCR

- specific waste found in that impoundment that caused the ecological disaster, but the sheer size of the release. The ecological damage would have been severe whether is was just back yard mud. We must separate poor dam safety from the aspects of perceived but unproven threats of CCR

- specific hazards.

The EPA is correct in requiring this basic concept of dam safety to be mandated in its rulemaking, but would be just as effective under a Subtitle D structure.

This is one example where the EPA can be instrumental in steering the future of CCR disposal practices yet still protect half of the nation's energy supply from interruption. IPSC supports the EPA in these efforts as long as the resulting regulatory oversight is balanced, workable, and economically viable while being protective.

IPSC further believes this is also a clear example of why the EPA should implement CCR regulations under the D' (D prime) sub

- option. The EPA has flexib ility to offer such an option to overlay and complement existing State regulations that cover landfill and groundwater protections, such as Utah. Such flexibility would enhance effective management of CCR at more reasonable cost and yield comparable benefi ts and protection.

IPSC voluntarily participates in the State's landfill permitting program for our CCR disposal. Although Utah's statutes currently can not force oversight of CCR disposal, IPSC supports statutory changes to allow such oversight. We have discussed with State officials this process and they are aware of our support.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for thi s rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09728

- 24 

### 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: 2.1.3 2.1.4 

### Comment Excerpt Text:

IPSC recommends that EPA :

• Leave the 1993 and 2000 determinations in place;

• Let the Bevill Amendment stand;

• Adopt the D Prime option as follows:995

~ Allow existing impoundments to operate as described in the proposed rule, especially where States can have a protective program in place, and site

- specific conditions warrant it;

~ Where States have comparable Subtitle D programs: • Allow existing State landfill permitting regulations to have precedence, • Allow existing State groundwater protection standards to have pr ecedence, • Allow existing State groundwater monitoring standards to have precedence, Allow existing State self reporting requirements to have precedence over company web based documentation;

~ Allow States to adopt best practices under Subtitle D for site specific criteria;

~ Overlay and institute Subtitle D in areas lacking at the State level.

~ Let similar State financial assurance programs operate in place of CERCLA.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09815

- 2 

### Organization 1 

### : Indiana Office of Utility Consumer Counselor 

### Commenter 1 : A. David Stippler Commenter Type: State Government
Classification: S ubstantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: The OUCC joins with the recommendations of various state environmental protection agencies, members of Congress, ash marketers and industries that use coal ash for a myriad of beneficial uses, and virtually every business sector that has contacted EPA on this matter, to urge the EPA to develop federal non

- hazardous waste regulations for coal ash under the RCRA Subtitle D prime" option . This option provides the EPA sufficient authority to regulate sites that are out of compliance with water safety standards, yet allows the state's electricity providers the flexibility they need to manage coal ash efficiently, safely, and cost

- effectivel y. As these different groups have made clear, such an approach would allow EPA to work with the states in implementing regulations that are fully protective of human health and the environment without negatively impacting the beneficial use of coal ash and causing an increase in energy prices at a time when the country can least afford it.996

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble f or this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09828

- 4 

### Organization 1 

### : Montana

- Dakota Utilities Compan y (Montana

- Dakota) 

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



### Comment Excerpt Text:

Montana

- Dakota strongly urges that the EPA implement subtitle "D Prime" under RCRA as the final method of regulating CCRs and believes that this option is fully protective of human health
and the environmental. Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09885

- 18 

### Organization 1 

### : Progress Energy, Inc. 

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



### Comment Excerpt Text: The Subtitle D Prime option will be fully protective of human health and the environment

Given that Subtitle D Prime’s substantive controls are patterned in large part on the p roposed Subtitle C controls, the overall level of protection to human health and the environment are equivalent under both options. As EPA explains in describing the protective nature of the Subtitle D option, the agency has historically interpreted both t he Subtitle C and Subtitle D statutory provisions as requiring it “to establish a comparable level of protection, corresponding to an acceptable risk level ranging between 1 x 10

- 4 to 1 x 10

- 6” and that EPA can establish even more stringent Subtitle D stan dards where it deems such regulations are appropriate. Therefore, the Subtitle D Prime option would provide the same level of protection to human health and the environment as the Subtitle C option without the corresponding adverse impacts
of the Subtitle C approach.997

One of the elements of the Subtitle D Prime option that makes it the better choice is that it does not require all existing surface impoundments to close if they are operating in a manner that is fully protective of human health and the enviro nment. This option does not include the automatic requirement to dredge and line all existing CCR surface impoundments within five years of the effective date of the regulations, or close these impoundments. Under the Subtitle D Prime option, existing CCR surface impoundments would continue to be subject to groundwater monitoring and corrective action requirements so that any threats from these units during their operating life would be detected and appropriate corrective action would be taken. Progress
Ene rgy agrees that CCR disposal units that are not fully protective must either take appropriate corrective action or close. There are many CCR surface impoundments which are perfectly safe; there is no reason why these units should not be allowed to continue operating

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is ad opting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09885

- 21 

### Organization 1 

### : Progress Energy, Inc. 

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



### Comment Excerpt Text: The Subtitle D Prime option requires certain amendments to better reflect CCR disposal operations

While Progress Energy supports the Subtitle D Prime option and believes that it can be administered through qualified state programs with back

- up EPA enforcement authority in
under

- performing states, there are fundamental flaws with elements of the propose d regulations in need of correction. Key problems include: unrealistically short closure timeframes for CCR disposal units; the unwarranted application of all location restrictions to existing CCR surface impoundments; the inclusion of inappropriate consti tuents in the proposed groundwater monitoring program; the failure to allow for alternate liner systems; and an overly broad definition of “CCR Landfill” that inappropriately includes all “large scale fill operations.” These
and other issues are discussed below

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a998

complete discussion of the regulatory approach EPA is adoptin g as well as a comprehensive discussion of the technical requirements of the rule.

Response: The commenter is referred to Unit IV of t he preamble for a discussion o f EPA’s 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

- 09994

- 1 

### Organization 1 

### : Department of Water and Power the City of Los Angeles (LADWP) 

### Commenter 1 : Eric J. Tharp and Mark J. Sedlacek Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: LADWP supp orts RCRA Subtitle 0 "Prime" option

LADWP favors the development of federal regulations for CCRs under the RCRA Subtitle D

non

- hazardous waste program. Upon further evaluation of this alternative, LADWP believes the "Subtitle D Prime" option is the best option to regulate the materials. The RCRA Subtitle D Prime option will enable EPA to establish an effective environmentally protective program without hurting CCRs beneficial uses and imposing higher electricity costs to ratepayers.

Under RCRA Subtitle D Sections 4005(c) and 4010(c), the EPA has statutory authority to promulgate federal regulations specifically designed for CCRs disposal units. These regulations would be directly enforceable by the states and the public under RCRA' s citizen suit provisi on. In addition, the EPA would also retain its imminent and substantial endangerment authority to take action against any CCRs units that posed a risk to human health or the environment.

The development of Subtitle D regulations for CCRs under Section 40 10 of RCRA offers a workable solution for the EPA, electric utilities, and the public. While this approach would likely require a supplemental proposal, it will provide the EPA with the enforcement authority it desires, while avoiding the adverse implicati ons of Subtitle C. The command

- and

- control Subtitle C hazardous waste option would not be needed when the EPA can develop federally enforceable rules for CCRs under an equally protective. Subtitle D non

- hazardous waste

program.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive

discu ssion of the technical requirements of the rule.999



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09994

- 5 

### Organization 1 

### : Department of Water and Power the City of Los Angeles (LADWP) 

### Commenter 1 : Eric J. Tharp and Mark J. Sedlacek Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

Conclusions

Subtitle D proposal would give the EPA authority to set performance standards with a narrower scope t hat would be protective of the environment. The standards would include:

• Location restrictions of new CCR landfills or surface impoundments.

• Closure of existing landfills or surface impoundments that are located in an unstable area.

• Design crit eria for new CCR landfills, and new and existing CCR surface impoundments.

• Operating criteria for fugitive dust emission, run

- on and run

- off control, surface water discharge, surface impoundment inspection, and recordkeeping.

• Groundwater sampling a nd analysis, detection and assessment monitoring and corrective
action.

LADWP believes that regulating the CCRs 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 is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule. The commenter is also referred to the discussion in Unit VI on the technical requirements being promulgated in this rule



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09996

- 2 

### Organization 1 

### : Midwest Coal Ash Association (MCAA) 

### Commenter 1 : Gary P. Haney Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:1000



### Comment Excerpt Text:

U nlike the RCRA C approach, D Prime will establish an environmentally protective program for coal ash disposal units without crippling beneficial use and imposing unnecessary regulatory costs on power plants, threatening jobs and increasing electricity cost s. We do not believe that the record to date, or any new information or data that has been added to the Docket justifies a change in the classification of coal ash, even for disposal.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10017

- 29 

### Organization 1 

### : Salt River Project (SRP) 

### Commenter 1 : Daniel J. Casiraro Commenter Type: Electric Utility Company
Classification: Substantive
C omment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 4.4.5.1.1 4.4.7.5.2 4.4.7.2 4.6.1.4 4.2.2 

### Comment Excerpt Text: SRP urges EPA to adopt the non

- hazardous waste, Subtitle D Prime approach to regulation of CCRs with the following important revisions or modifications:

Allow alternatives to composite liners when site specific characteristics support such
alternatives.

Require closure, if necessary, only under a state approved program that provides a reasonable
time frame.

Allow an alternative list of groundwater monitoring parameters based on site specific conditions and approval by a registered professional.

Incl ude a mechanism for qualified state programs to administer the rules instead of the self

implementing approach.

Ensure an adequate time frame for facilities to come into compliance.

The Subtitle D Prime option offers the same level of protection as the Subtitle C option without the significant and costly impacts of Subtitle C, while (i) allowing the continued use of environmentally acceptable existing CCR surface impoundments for the remainder of their useful lives; and (ii) supporting the continued ben eficial use of CCRs.1001

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approac h EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule. The commenter is also referred to the discussion in Unit VI of the preamble that discusses the technical requirements of the rule and the options EOPA consid ered in developing these requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10017

- 4 

### Organization 1 

### : Salt River Project (SRP) 

### Commenter 1 : Daniel J. Casiraro Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Tas k: Examine Context Assigned/Due:
Other Sections: 4.1.2 

### Comment Excerpt Text: SRP supports the regulation of CCRs under the Subtitle D Prime option with some important revisions. The Subtitle D Prime option avoids many of the major flaws contained in the alternative Subtitle D option; most importantly Subtitle D Prime would not require utilities to retrofit all surface impoundments irrespective of their environmental performance. The Subtitle D prime option correctly recognizes that existing CCR impoundmen ts that meet applicable groundwater monitoring standards should be allowed to continue operating because such standards ensure performance in an environmentally sound manner. The Subtitle D Prime option would include all the components of the main Subtitle D option but would allow CCR surface impoundments to continue to operate for the remainder of their useful life. Although SRP supports Subtitle D Prime as the preferred option, there are certain important revisions necessary
that are discussed further bel ow and that were conveyed to EPA by USWAG's testimony at the EPA public hearings

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for t his rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10017

- 5 

### Organization 1 

### : Salt River Project (SRP) 

### Commenter 1 : Daniel J. Casiraro Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:1002

Current Task: Examine Context Assigned/Due:
Other Sections: 9.3.6 

### Comment Excerpt Text: In most key respects, the Subtitle D Prime controls are the same as the proposed Subtitle C controls and therefore provide a high level of protection to human health and the environment. Both the Subtitle C and the two Subtitle D options would ensure a lev el of risk within EPA's acceptable risk range of lxl0

- 4 to 1xl0

- 6. Because the Subtitle D Prime option requires existing CCR surface impoundments to continue to be subject to groundwater monitoring and corrective action, that option offers the same level o f protection as the Subtitle C without the significant and costly impacts associated with the Subtitle C option. One of the largest costs and concerns with the main Subtitle D and Subtitle C options are the mandatory upgrading and/or closing of CCR
surface impoundments that pose no threat to human health and the environment.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10017

- 7 

### Organization 1 

### : Salt River Project (SRP) 

### Commenter 1 : Daniel J. Casiraro Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.6.1.4 4.5 4.4.8 

### Comment Excerpt Text: Another important modification to the Subtitle D Prime and main Subtitle D options would be an
extension of the timeframes for closure. Such an extension of time would ensure that CCR surface impoundments that must be closed are closed in an environmentally sound manner. SRP recommends that closure of CCR imp oundments, if necessary, be conducted under a state approved program within a reasonable timeframe.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI o f the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10165

- 2 

### Organization 1 

### : Indiana Municipal Power Agency (IMPA) 

### Commenter 1 : Jack F. Alvey1003

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



### Comment Excerpt Text:

IMPA believes that this would allow EPA to e stablish an environmentally protective program for coal ash disposal by maintaining impoundment integrity, water quality, and regulatory oversight without crippling coal ash beneficial reuse and imposing unnecessary regulatory costs on power plants, threat ening jobs, power reliability, and increasng electricity costs. This would still allow existing coal ash impoundments to continue operating, provided that they meet applicable groundwater monitoring standards and are performing in an environmentally sound manner. It would also allow for the administration of the federal Subtitle D Rules for CCR by state regulatory programs and allow a more realistic extension of time for closure of certain CCR
facilities.

Response: The Agency is not promulgating the subti tle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive
discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10165

- 6 

### Organization 1 

### : Indiana Municipal Power Agency (IMPA) 

### Commenter 1 : Jack F. Alvey Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Development of the Subtitle D Prime option and continuing with EPA's non

- hazardous classification of CCR will protect our communities from any effects of coal ash disposal. While
this still adds some c osts to power generators, Subtitle C regulation would result in significantly higher costs and adverse effects on the entire business community and more job losses

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10324

- 12 

### Organization 1 

### : Public Service Company of New Hampshire (PSNH)1004



### Commenter 1 : William H. Smagula Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigne d/Due:



### Comment Excerpt Text: Like US WAG, we note that even the proposed Subtitle D "Prime" language will require
substantial modifications.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 45 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG) et al. 

### Commenter 1 : James R. Roewer Commenter Type: Trade Association
Classificat ion: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: B. The Subtitle D Prime Option Will Be Fully Protective Of Human Health And The
Environment

USWAG supports the Subtitle D Prime option because it would ensure the development of fully protective controls for CCRs in an effective and practical manner. It would include all the elements of the primary “Subtitle D” option with the exception that it “would not require the closure or installation of composite liners in existing surface impoundments; rather, these surface impoundments could continue to operate for the remainder of their useful life.” 75 Fed. Reg. at
35210.

As EPA itself acknowledges, many of the Subtitle D option‘s substantive requirements,
inc luding those under Subtitle D Prime, are the same as those under the Subtitle C option, including the technical and design standards for CCR liner systems, groundwater monitoring and associated corrective action, and surface impoundment integrity standards . 75 Fed. Reg. at 35193. In fact, many of the provisions under the Subtitle D option “either correspond to the provisions EPA is proposing to establish for RCRA Subtitle C, or are modeled after existing Subtitle C requirements.” Id. In addition to borrowin g from key elements of RCRA‘s existing standards for municipal solid waste landfills under 40 C.F.R. Part 258

– which the Agency found “would be expected to address the risks presented by the constituents in CCR wastes”

– the proposed Subtitle D rules also considered and incorporated some of the self

- implementing1005

elements of RCRA‘s hazardous waste interim status requirements into the Subtitle D proposal.
Id.

Given that the Subtitle D Prime‘s substantive controls are patterned in large part on the proposed Subtitle C controls, the overall level of protection to human health and the environment are equivalent under both options. As EPA explains in describing the protective nature of the Subtitle D option, the Agency has historically interpreted both the Subti tle C and Subtitle D statutory provisions as requiring it “to establish a comparable level of protection, corresponding to an acceptable risk level ranging between 1 x 10

- 4 to 1 x 10

- 6” and that EPA can establish even more stringent Subtitle D standards wh ere it deems such regulations are appropriate. Id. Therefore, the Subtitle D Prime option would provide the same level of protection to human health and the environment as the Subtitle C option without the corresponding adverse impacts of the Subtitle C ap proach.

One of the elements of the Subtitle D Prime option that makes it the better choice is that it does not require all existing surface impoundments to close if they are operating in a manner that is fully protective of human health and the environmen t. This option does not include the automatic requirement to dredge and line all existing CCR surface impoundments within five years of the effective date of the regulations, or close these impoundments. Id. at 35244 (proposed 40 C.F.R. § 257.71(g)). Under the Subtitle D Prime option, existing CCR surface impoundments would continue to be subject to groundwater monitoring and corrective action requirements so that any threats from these units during their operating life would be detected and appropriate cor rective action would be taken. USWAG agrees that CCR disposal units that are not fully protective must either take appropriate corrective action or close; however, there are many CCR surface impoundments that are perfectly safe. There is no reason why thes e units should not be allowed to continue operating.

Indeed, one of the largest cost elements of the primary Subtitle D option is the mandatory upgrading and/or closure of all CCR surface impoundments, irrespective of their environmental performance. Acco rding to the EOP Group‘s analysis, the costs to the utility industry of converting CCR wet handling systems to dry CCR handling systems under the Subtitle D option would be approximately $34 billion dollars. See EOP Report at 16 (attached as Appendix 19). [Footnote 33: From a strict analytical perspective, EOP also evaluated compliance costs under the Subtitle D option assuming no facilities converted from wet to dry handling, but instead constructed new impoundments meeting the Subtitle D composite liner a nd groundwater monitoring requirements. Under this scenario, Subtitle D compliance costs were estimated to be approximately $7 billion. Id. at 15. However, as EOP points out, this scenario is not realistic for a number of reasons including lack of land ava ilability for constructing new impoundments, permitting concerns, local opposition and long

- term liability. Id. at 15

- 16. In fact, EOP reports that, for these reasons, many utilities would undertake wet

- to

- dry conversions for all fly ash ponds and at least half of all bottom ash and FGD impoundments. Id. at 16. Indeed, even the $34 billion Subtitle D cost estimate does not include the fully loaded costs of converting from wet

- to

dry CCR management. ] There is no basis for the blanket imposition of this requ irement and the associated staggering costs on existing units that are operating in a safe and effective manner. USWAG therefore supports the Subtitle D Prime option because it will ensure that CCR disposal practices are protective of human health and the environment without requiring the needless1006

closure of environmentally sound CCR impoundments.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the p reamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10495

- 67 

### 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: E. EPA’s Subtitle D Prime Criteria Do Not Comply independent With The RCRA
Standard Fo r Such Criteria Under Section 4004(a).

Under EPA’s subtitle D prime option, existing surface impoundments would not have to close or install composite liners but could continue to operate for their “useful” life. [Footnote 362: 75 Fed. Reg. 35134.]. For a ll the reasons stated above, the subtitle D prime option is arbitrary, capricious and in violation of RCRA. Furthermore, its provision allowing the continued operation of unlined impoundments is unlawful for the reasons specified in Section VIII, supra.
Co ntinued operation of unlined surface impoundments, in many instances, poses the threat of imminent and substantial endangerment of human health or the environment, and thus is prohibited under section 7002(a)(1)(B) of RCRA. [Footnote 363: 42 U.S.C. § 6972( a)(1)(B).]. A detailed discussion of the present threats posed by surface impoundments is found in prior sections of these comments and in the expert reports attached as Appendices I, M and N. In addition, these comments address the need for EPA to use its authority pursuant to section 7003(a) of RCRA to address coal ash impoundments that are posing a threat of imminent and substantial endangerment. [Footnote 364: 42 U.S.C. § 6873(a).].

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10621_DC

- 035

- 1 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG) 

### Commenter 1 : Pamela Faggert Commenter Type: Trade Association1007

Classification : Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: Let me say at the outset that USWAG favors the development of federal regulations for CCRs
under RCRA's Subtitle D non

- hazardous waste program. The question for us is not whether to regulate, but how to regulate. We have evaluated the alternatives and believe that the "Subtitle D Prime" option is the best path forward. Unlike the Subtitle C approach, D Prime will establish a
robust and environmentally protective program for coal ash disposal units without crippling coal ash beneficial use and imposing unnecessary regulatory costs on power plants, threatening jobs and increasing electricity costs. USWAG shares EPA's objective of havin g a federal regulatory program that ensures the safe disposal of CCRs; the D prime option will meet this objective.

One of the elements of the D Prime Option that makes it the preferred option is that it would not require the automatic closure of CCR surf ace impoundments that are operating in a manner that is fully protective of human health and the environment. We agree that disposal units that are not fully protective must either be upgraded or closed; however, there are many CCR surface impoundments whi ch are perfectly safe. There is no reason why these units should not be allowed to continue operating.

A major short

- coming, however, of the Subtitle D and D Prime approach is the lack of any mechanism for the states to step in and administer the regulat ions. 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 V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was present ed in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10634_DC

- 049

- 2 

### 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: 10.1.1 10.4.21008



### Comment Excerpt Text: A federal subtitle D, non

- hazardous waste regulation, along the lines of Pennsylvania's successful program, would support beneficial use of this large volume mineral resource. Conversely, federal subtitl e C hazardous waste regulation would severely limit

- and most likely
eliminate

- beneficial uses, including cement industry applications and mine reclamation. Beneficial uses create thousands of jobs and provide their own significant environmental
benefit s.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option th at was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the r ule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10634_DC

- 049

- 5 

### 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: 4.1.3 3.1.2 

### Comment Excerpt Text: PPL strongly opposes federal subtitle C regulation, and instead requests that EPA regulate CCRs under the subtitle "D prime" option, including a modification that integrates with current state regulatory programs such as Pennsylvania's Residual Waste and Dam Safety Regulations. This approach will create a reasonable and effective regulatory program that protects the environment, retains options for beneficial use, and preserves jobs, while not adversely im pacting our

economy.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was present ed in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete1009

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10708_DEN

- 020

- 1 

### Organization 1 

### : PPL Montana, LLC 

### Commenter 1 : Steve J. Christian Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 7.1.2 5.6 

### Comment Excerpt Text: Coal combustion residuals from these plants have been regulated effectively since 1980 as a non

hazardous waste by the Montana Department of Environmental Quality (DEQ) under Montana's Major Facility Siting Act.

Colstrip, a zero

- discharge facility, has some seepage from wastewater ponds. This was not unexpected based on seepage control measures implemented when the ponds were built. We have invested tens of millions of dollars in upgrades to wastewater faci lities, including installation of synthetic liners and implementation of an innovative pasting process that solidifies coal ash scrubber sludge to help prevent future seepage. Additionally, we are capturing pond sewage and returning it to our waste water s ystem.

Recently, PPL Montana agreed to enter into an Administrative Order on Consent with Montana DEQ that establishes a comprehensive process to investigate and remediate groundwater seepage from wastewater facilities at the Colstrip plant. I would like to point out that coal combustion residuals from PPL Montana plants do not meet EPA's criteria for toxicity used to define
hazardous waste. The level of metals is so low as to be non

- detectable. The bottom line is that no impacts from heavy metals have be en found in drinking water around the plant, and we continue to work with Montana DEQ on seepage issues.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how t his subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10708_DEN

- 020

- 5 

### Organization 1 

### : PPL Montana, LLC1010



### Commenter 1 : Steve J. Christian 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: In closing, PPL Montana strongly opposes Subtitle C hazardous waste regulation and requests
that EPA regulate CCRs under the subtitle "D prime" option that integrates with current state regulatory programs. This will create a reasonable and effective regulatory program that protects the environment, retains options for beneficial use, and allows companies like PPL Montana to provide hundreds of good

- paying, family

- sustaining jobs.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will b e implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subti tle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10726_DEN

- 038

- 4 

### Organization 1 

### : MidAmerican Energy Holdings Company 

### Commenter 1 : Cathy S. Woollums Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: In conclusion, PacifiCorp believes that EPA should reject a one

- size

- fits

- all approach to what we
believe would be an o verly restrictive regulatory scheme without consideration of site

- specific risks and, instead regulate CCR under RCRA Subtitle D “Prime.” While we recognize the sensitivity and concern associated with the catastrophic release of coal combustion residuals a t the TVA Kingston plant, we believe that EPA’s proposed Subtitle C regulation goes too far in imposing significant restrictions on responsible companies that will have unintended consequences on the operation of electric generating facilities. The way to address the issue is by working with the state agencies to establish an appropriate and enforceable regulatory framework to address coal combustion residuals rather than imposing punitive regulations on those who manage their facilities responsibly. We bel ieve that properly implemented Subtitle D Prime regulations will ensure protection of human health and the environment without adversely impacting CCR beneficial use.1011

Response: The Agency acknowledges and appreciates the comment, the commenter is
referr ed to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed
rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10732_DEN

- 044

- 1 

### Organization 1 

### : Platte River Power Authority 

### Commenter 1 : David Ussery Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text:

- Platte River prefers the development of federal regulations for CCRs under RCRA Subtitle D

non

- hazardous waste rules.

- Additionally, EPA should select the Subtitle D Prime option as the appropriate course to pursue
within the Subtitle D framework becau se it avoids the absolute requirement to retrofit all surface impoundments irrespective of their environmental performance.

- This option correctly recognizes that existing CCR impoundments should be allowed to continue operating, provided that these unit s meet applicable groundwater monitoring and structural standards and thus are operating in an environmentally sound manner.

- The State of Colorado must be given a role in implementation of the Subtitle D option. This will avoid duplication with existing State programs and provide the Subtitle D option with the direct permitting mechanism that EPA wants.

- EPA already has authority under Section 4010(c) to issue federally enforceable rules under
Subtitle D for CCRs.

Response: The Agency acknowledges an d appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed
rule. The reader is referred to Units V and VI of the preamble for this rule for a complete1012

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10738_DEN

- 050

- 2 

### Organization 1 

### : Intermountain Power Service Corporation 

### Commenter 1 : Jon A. Finlinson Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: IPP favors the development of federal regulations for CCRs under RCRA’s Subtitle D nonhazardous waste program. We have evaluated the alternatives and believe that the “Subtitle D Prime” option is the best path forward. IPP shar es EPA’s objective of having a federal regulatory program that ensures the safe disposal of CCRs; the D prime option will meet this objective without crippling coal ash beneficial use and imposing unnecessary regulatory costs on power plants, threatening j obs, and increasing electricity costs.

Regulation of CCRs should be applied regionally, and state by state to provide optimal benefit on

a case

- by

- case, site

- by

- site basis. EPA should therefore consider a mechanism for the states to administer the regulat ions.

Although a tragedy, the TV A Kingston spill was not caused by the so

- called “toxicity” or any characteristic specific to CCR. Any bulk material dammed in the same circumstance would also fail. Poor dam design, construction, or maintenance should not be the basis for overreaching regulation.

One of the elements of the D Prime Option that makes it the preferred option is that it would not require the automatic closure of CCR surface impoundments that are designed and operating in a
manner which is ful ly protective of human health and the environment, such as at IPP. We agree that disposal facilities that are not fully protective must either be upgraded or closed; however, there are many CCR surface impoundments which are perfectly safe. There is no rea son why these units should not be allowed to continue operating.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete1013

discussion of the regulatory approach EPA is adopting as well as a co mprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10740_DEN

- 052

- 3 

### Organization 1 

### : Arizona Electric Power Cooperative, Inc. (AEPCO) 

### Commenter 1 : Patrick Ledger Commenter Type: Electric Utility Company
Clas sification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: For these reasons, Arizona Electric Power Cooperative supports the development of CCR regulation under the Subtitle "D Prime" option. We believe that this regulatory option will best accomplish the objective of ensuring that CCR disposal facilities, like those at Apache Station, will continue to be appropriately monitored to ensure they are operated in a safe manner. But, unlike the Subtitle C approach, the D Prime option would establish comprehensive, environmentally sound regulations for coal ash disposal, without imposing unreasonable and unnecessary costs on rural electric rate payers.

Response: The Agency acknowledge s and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed
rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 200 9

- 0640

- 10747_DEN

- 059

- 1 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG) 

### Commenter 1 : Jim Roewer Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: Let me say at the outset that USWAG supports the development of federal regulations for CCRs
under RCRA's Subtitle D non

- hazardous waste program. The question for us is not whether to1014

regulate, but how to regulate. Having evaluated th e alternatives, the "Subtitle D Prime" option, with appropriate adjustments, is the best path forward. Unlike the Subtitle C approach, D Prime will enable EPA to establish an environmentally protective program without crippling CCR beneficial use and impos ing unnecessary costs on power plants, threatening jobs and increasing electricity costs.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities u nder a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10747_DEN

- 059

- 3 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG) 

### Commenter 1 : Jim Roewer Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.4 3.1.2 

### Comment Excerpt Text: Moreover, one of EPA's stated concerns with the Subtitle D option is its perceived lack of federal enforceability under this approach. However, EPA does have the authority to issue federally enforceable Subtitle D rules for CCRs; it simply is not using that authority. I would refer EPA to the same RCRA provisions under which it issued federally enforceable Subtitle D rules for municipal solid waste landfills. The first provision is section 4010( c), which directs EPA to develop upgraded Subtitle D standards for facilities "that may receive" or may potentially receive
"hazardous household wastes" or conditionally exempt small quantity generator wastes. A related provision is section 4005(c), which authorizes EPA to enforce these upgraded Subtitle D regulations in those states that fail to adopt the federal rules. EPA itself has described this
autho rity as "significant in that it represents the first authority for EPA enforcement of regulatory requirements under Subtitle D." [Footnote 1: 53 Fed. Reg. 33314, 33383 (August 30, 1988)] CCR disposal facilities fall within the scope of EPA's authority unde r these provisions, as they are without question Subtitle D facilities that "may" accept household hazardous wastes and CESQG wastes, and clearly have the "potential" to receive such wastes.

The development of Subtitle D regulations for CCRs under section 4010 of RCRA offers a win

win option for EPA and the public. While this approach would likely require a supplemental proposal, it will ensure that EPA will "get it right:" providing the Agency with the enforcement authority it desires, while avoiding the unnecessary and adverse implications of Subtitle C. There1015

is simply no reason for EPA to pursue the Subtitle C approach when it can develop federally enforceable rules for CCRs under the less controversial, yet equally protective, Subtitle D non

hazardous waste program.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirement s of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10751_DEN

- 063

- 2 

### 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: 4.2.2 

### Comment Excerpt Text: A concern we have about both the Subtitle D and D Prime options, however, is the lack of any mechanism for states to step in and administer the regulations. Many states, including Arizona, have regulatory programs in place that meet or exceed the Subtitle D standards in EPA's proposal. So, rather than throw the proverbial baby out with the bath water, APS encourages EPA to allow qualified state programs to administer federal Subtit le D rules.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10751_DEN

- 063

- 3 

### Organization 1 

### : Arizona Public Service Company (APS) 

### Commenter 1 : Scott Davis1016

Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Co ntext Assigned/Due:
Other Sections: 7.1 

### 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 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 acknowled ges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating t o the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed
rul e. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10751_DEN

- 063

- 5 

### 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 Secti ons: 4.1.3 3.1.2 

### Comment Excerpt Text: There are simply no sound environmental or economic reasons to pursue a Subtitle C approach when the Subtitle D Prime option could be tailored to provide federal enforceability under the same RCRA provisions EPA used to establish the Subtitle D rules for municipal solid waste landfills. These rules, implemented by the states, and backed up by direct EPA enforcement authority offer the same degree of protection without the attendant regulatory and cost burdens
associat ed with Subtitle C.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.1017

The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### 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: 7.1 

### Comment Excerpt Text: Our third concern is that EPA's proposal discounts the important role that many States play today. 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 programs. To avoid duplication, we urge EPA to allow states with effective programs to continue to administer them under Subtitle

D. Federal e fforts should focus on the few states that may need improvement.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was present ed in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10777_DA

- 008

- 1 

### Organization 1 

### : American Electric Power (AEP) 

### Commenter 1 : David Miller Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: AEP supports the development of federal regulations for CCRs under RCRA's Subtitle D non

hazardous waste program. AEP believes the "Subtitle D Prime" option, if revised appropriately, would be the best path forw ard and establishes an environmentally protective program without1018

destroying CCR beneficial use and imposing unnecessary regulatory costs on power plants, threatening jobs and increasing electricity costs for customers.

The Subtitle D Prime option is pref erred because it would not require the automatic closure of CCR surface impoundments that are operating in a manner that is fully protective of human health and the environment. AEP agrees that disposal units that are not fully protective must either be up graded or closed; however, there are many CCR surface impoundments which are perfectly safe and protective of the environment. There is no reason why these units should not be allowed to continue operating.

Response: The Agency acknowledges and appreciate s the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed
rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10779_DA

- 010

- 4 

### Organization 1 

### : Entergy Services, Inc. (Entergy) 

### Commenter 1 : Mark C. Bowles Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 4.2.2 

### Comment Excerpt Text: Entergy has evaluated the alternatives contained in EPA’s proposed rule and believes that the “Subtitle D Prime” option is the best solution. Unlike the Subtitle C approach, D Prime will establish a robust and environmentally protective program for coal ash storage and disposal units without crippling coal ash beneficial use and imposing unnecessary regulatory costs on power plants, threatening jobs and increasing electricity costs. The Subtitle D Prime option recognizes that existing CCR impoundment s with sound performance should be allowed to continue to operate.

However, Entergy feels that the Subtitle D Prime option, as written, requires improvements, including allowing for administration of the federal Subtitle D rules for CCRs by state regulato ry programs to avoid duplication of federal and state efforts. This would also allow states to enforce compliance through a traditional permitting framework.

Entergy also believes that this option does not limit EPA’s enforcement authority since 4010(c)

o f RCRA and similar provisions clearly allow EPA to oversee state rules regulating solid wastes.1019

EPA already does this with MSW landfills and non

- MSW landfills that may receive conditionally exempt small quantity generator hazardous waste. For these reasons , we ask EPA to select the Subtitle D prime option in its final rule.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be impleme nted and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rul e.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10789_DA

- 020

- 3 

### Organization 1 

### : Entergy Services, Inc. (Entergy) 

### Commenter 1 : Mark C. Bowles Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: Entergy has evaluated the alternatives contained in EPA’s proposed rule and believes that the “Subtitle D Prime” option is the best so lution. Unlike the Subtitle C approach, D Prime will establish a robust and environmentally protective program for coal ash storage and disposal units without crippling coal ash beneficial use and imposing unnecessary regulatory costs on power plants, thre atening jobs and increasing electricity costs. The Subtitle D Prime option recognizes that existing CCR impoundments with sound performance should be allowed to continue to operate.

However, Entergy feels that the Subtitle D Prime option, as written, requ ires 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 permi tting framework.

Entergy also believes that this option does not limit EPA’s enforcement authority since 4010(c) of RCRA and similar provisions clearly allow EPA to oversee state rules regulating solid wastes. EPA already does this with MSW landfills and non

- MSW landfills that may receive conditionally exempt small quantity generator hazardous waste.1020

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this su btitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory autho rities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approac h EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11015_CHA

- 050

- 1 

### Organization 1 

### : Georgia Power 

### Commenter 1 : Chuck Huling Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: First, Georgia Power supports protection of the environment and safe management of CCBs. • Georgia Power remains commit ted to appropriate criteria to ensure dam safety and integrity that the public can rely on. • Georgia Power also supports the regulation of CCBs in a manner that establishes reasonable minimum standards, while recognizing the variability of each site. EPA' s proposed Subtitle D Prime approach recognizes that existing CCB impoundments should be allowed to continue operating with state oversight.

Second, Georgia Power believes that State agencies should regulate CCBs. • EPA's own conclusions in 1993 and 2000 recognize that states should continue to be the primary regulators of CCBs. • Georgia, and other states, have operational experience and have provided effective oversight of CCBs through wastewater programs, landfill disposal, closure of surface impoundme nts and
beneficial reuse.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was present ed in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete1021

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11015_CHA

- 050

- 4 

### Organization 1 

### : Georgia Power 

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

### Comment Excerpt Text: To conclude, Georgia Power supports dam integrity and a performance based approach for management of CCB units with state regulatory oversight and enforcement.

Response: The Agency acknowledges and appreciates the comment, the comme nter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subti tle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed
rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11022_CHA

- 057

- 5 

### Organization 1 

### : Santee Cooper 

### Commenter 1 : Jay Hudson Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 9.3.7 

### Comment Excerpt Text: II. Impact on the Cost of Power

This pro posed rule will impact the cost of power. The cost to handle coal combustion residuals as a hazardous waste under the C option will increase not only due to disposal costs, but also because of the actual handling at each station. The cost to close existing ash ponds will be high and the cost to permit and build new landfills will be high. These increases are passed through to the customers using the electricity. Ash which is currently wet sluiced to ash ponds will need to be converted to dry handling system s under both the C and D options. This type of conversion requires significant capital investment.1 022

Under the D prime option, ash ponds that meet certain criteria can remain in operation beyond the closure requirements in the other options. This appears t o be a reasonable way to reduce the cost burden while still being protective of the environment.

We request that EPA carefully considers comments from industry with regard to actual projections of the cost.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was present ed in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11027_CHA

- 062

- 1 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG) 

### Commenter 1 : Pat McCable Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 4.2.1 4.2.5 

### Comment Excerpt Text: USWAG supports the "Subtitle D Prime" option, with appropriate adjustments, because of the options presented by EPA this is the one that best balances clean energy with affordability and reliability. USWAG shares EPA's objective of having a federal regulatory program that ensures the safe disposal of CCRs; the "D Prime" option will meet this objective.

Opponents of a Subtitle D option persist on incorrectly stating that this would merely preserve
th e status quo under which EPA could only issue "guidance." This is not the case. Under a Subtitle D option, EPA would issue federal regulations specifically designed for CCR disposal units. These regulations would be directly enforceable by the states and t he public under RCRA's citizen suit provision. EPA would also retain its imminent and substantial endangerment authority to take action against any CCR unit that posed a risk to human health or the
environment.

We agree that disposal units that are not fu lly protective must either be upgraded or closed; however, there are many CCR surface impoundments which are perfectly safe. The "D Prime"1023

option will allow for development of a regulatory program that meets both of these objectives.

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 regulations. Clearly, there are state regulatory programs that already meet or exceed the proposed Subtitle D standards. States with

q ualified programs should be given the option of administering the federal Subtitle D rules if they so desire.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s stat utory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulat ory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11042_CHA

- 077

- 1 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG) 

### Commenter 1 : Caroline Choi Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 3.1.2 

### Comment Excerpt Text: Let me say at the outset that USWAG favors the development of federal regulatio ns for coal ash
under RCRA's Subtitle D non

- hazardous waste program. The question for us is not whether to regulate, but how to regulate. Of the three options presented by EPA, the "Subtitle D Prime" option, with appropriate adjustments, is the best path f orward. Unlike the Subtitle C approach, D Prime will enable EPA to establish an environmentally protective program without crippling coal ash beneficial use and imposing unnecessary costs on power plants, threatening jobs and increasing electricity costs.

In fact, even EPA has agreed that hazardous waste regulation will result in excessive and unnecessary regulation. In its final Regulatory Determination for the four large volume coal ash waste streams where EPA concluded that hazardous waste regulation wa s not warranted for coal ash, the Agency found that the inflexible nature of the federal hazardous waste program would result in excess costs and unduly burdensome regulations for coal ash. Let me quote from the portion of EPA's final Regulatory Determinat ion on this point:

A Subtitle C system would require coal combustion waste units to obtain a RCRA Subtitle C permit (which would unnecessarily duplicate existing State requirements) and would establish a1024

series of waste unit design and operating requirem ents for these wastes, which would generally be in excess of requirements to protect human health and the environment. ...Since [coal ash] sites vary widely in terms of topographical, geological, climatological, and hydrological characteristics (e.g., dept h to groundwater, annual rainfall, distance to drinking water sources, soil type) and the wastes potential to leach into the groundwater and travel to exposure points is linked to such factors, it is more appropriate for individual States to have the flexi bility necessary to tailor specific controls to the site or region specific risks posed by these wastes. [Footnote 1: Id at 42477 (emphasis added).]

We couldn't have said it better and nothing has changed since issuance of that Determination that
alters this conclusion.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was present ed in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11045_CHA

- 080

- 1 

### Organization 1 

### : Duke Energy 

### Commenter 1 : George Everett Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: Duke Energy strongly supports RCRA' s Subtitle D non

- hazardous program to regulate CCRs and specifically the "D Prime" option.

Subtitle D would raise the bar nationally for surface impoundment safety and achieve the environmental pro tection we all seek without the exponential cost and damaging consequences to the beneficial reuse industry.

Subtitle D would require electric utilities to either remove solids from existing surface impoundments and retrofit them with a composite liner or cease receiving CCRs within five years of the effective date and close the unit. New impoundments could only be constructed with composite liners. Groundwater monitoring would be required for all new and old landfills to provide continual assessment of an y possible groundwater impacts.1025

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of

the tech nical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11182_CHI

- 013

- 5 

### Organization 1 

### : MidAmerican Energy Holdings Company 

### Commenter 1 : Cathy S. Woollums Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.2 4.1.3 

### Comment Excerpt Text: Subtitle C regulation goes too far in imposing significant restrictions on responsible companies that will have unintended consequences on the operation of elec tric generating facilities. The way to address the issue is by working with the state agencies to establish an appropriate and enforceable regulatory framework to address coal combustion residuals rather than imposing punitive regulations on those who mana ge their facilities responsibly. We believe that properly implemented Subtitle D “Prime” regulations will ensure protection of human health and the environment without adversely impacting CCR beneficial use.

Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was present ed in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Commen t Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11183_CHI

- 014

- 1 

### Organization 1 

### : Ameren Corporation 

### Commenter 1 : Paul R. Pike1026

Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: Ameren favors the development of federal regulations for CCRs under RCRA's Subtitle D nonhazardous waste program and believe that the "Subtitle D Prime" is the best path forward. D Prime will ensure that catastrophic releases s uch as occurred at the Kingston, Tennessee facility do not occur and that other types of damage cases associated with CCR surface impoundments and landfills are prevented. Regulating CCRs under this option will also allow for the sound science which the Ag ency state is one of its principles in its ultimate decision for coal ash disposal units. The other proposed regulatory options assume that all existing surface impoundments and landfills are causing damage, yet in the preamble the Agency observes "that

ne arly all new CCR landfills and surface impoundments are constructed with liners". We agree that disposal units that are not fully protective must either be upgraded or closed; however, there are many CCR surface impoundments which are perfectly safe. There is no reason why these units should not be allowed to continue operating.

Under the Subtitle D prime option, EPA would issue federal regulations specifically designed for CCR disposal units. These regulations would be directly enforceable by the states a nd the public under RCRA's citizen suit provision and violators would be subject to significant civil penalties. EPA would also retain its imminent and substantial endangerment authority to take action against any CCR units that posed a risk to human healt h or the environment. However, there currently is no mechanism for the states to step in and directly administer the regulations. We believe that the Agency needs a "State First" aspect so that where state regulatory programs meet or exceed the proposed st andards; that these qualified state programs would be allowed to administer them with their existing requirements. illinois and Missouri have regulatory programs that meet or exceed many of the proposed requirements and should be allowed to administer
thei r program without the dual regulation of a Federal program. Failure in establishing a single source for requirements would mean that the regulated community could have conflicting requirements imposed upon it leading to potential noncompliance issues.

Resp onse: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was pr esented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.1027



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11261_CHI

- 032

- 1 

### Organization 1 

### : Illinois Environmental Regulatory Group (IERG) 

### Commenter 1 : Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Ot her Sections: 3.1.2 4.1.3 

### Comment Excerpt Text: IERG supports appropriate regulation of coal combustion residuals from coal fired generation to protect public health and safety, and believes that it is best regulated as a non

- hazardous waste
under Subtitl e D of the Resource Conservation and Recovery Act, rather than as a hazardous waste under Subtitle C. Regulation under Subtitle D will allow and encourage continued beneficial use of such materials where appropriate, as well as protection of public health and safety without undue cost or burden on industry, the states or the public. IERG is concerned that creating a sub

- classification of “special” hazardous waste, as is proposed under Subtitle C, will not alleviate the stigma that will be placed on coal com bustion byproducts, and will greatly reduce the environmentally sound beneficial use of such materials.

Under Subtitle D, regulations can be more easily tailored to the individual circumstances of each state, taking into account the geography and geology and overall regulatory structure. It can provide for appropriate construction and location standards, monitoring, and closure. As an example, ash ponds located in the relatively flat lands of Illinois may require very different designs than ponds located i n the hills and mountains of other states. Similarly, depending on geology, existing facilities may be allowed to continue operation in some states with appropriate monitoring where that would be inappropriate in other locations. Requiring the closure of s uch facilities before the end of their useful life would be wasteful, and not provide commensurate benefit to public health or the environment. In such instances, IERG believes that the “Subtitle

D

- prime” option, described in the USEPA’s proposal, would be appropriate.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11275_CHI

- 047

- 1 

### Organization 1 

### : Indiana Energy Association 

### Commenter 1 : Stan Pinegar Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:1028

The Indiana Energy Association submits that the appropriate route for U.S. EPA is to regulate CCRs under Subtitle D “Prime”, with modificatio ns. Subtitle D Prime avoids many of the major flaws provided in the alternative Subtitle D option, including what we believe to be an arbitrary requirement to retrofit all surface impoundments regardless of their risk to the environment.

Subtitle D Prime provides a framework for the appropriate platform for ensuring environmentally sound management of CCS.

We do believe the Subtitle D Prime option needs to be improved to allow for administration of the requirements by state regulatory agencies and through the traditional permitting programs. In addition, the schedule for closure of certain CCR disposal units must be reasonably extended to reflect realistic challenges of closing large units.

Response: The Agency is not promulgating the subtitle D prime op tion that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements o f the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11286_CHI

- 064

- 2 

### Organization 1 

### : Hoosier Energy Rural Electric Cooperative, Inc. 

### Commenter 1 : Michalene Reilly Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: Hoosier Energy supports development of federal regulations for CCRs under RCRA’s Subtitle D

non

- hazardous waste program and believes that the “Subtitle D Prime” provides subs tantial safety for human health and the environment. In fact, the standards for landfill design under the EPA proposals are essentially equal under the subtitle D and subtitle C options. Statements have been made that subtitle D or D prime would be akin to the design for a municipal solid waste landfill and Hoosier concurs with that assessment. The fact is that municipal landfills are designed to insure that wastes of all types thrown in the trash by homeowners, are protective. This includes conditionally e xempt wastes, mercury thermometers, fluorescent light tubes and CFLs, lighting ballasts and batteries. In fact, the design of municipal landfills recognizes the disposal, with an adequate safety factor, of materials from households that would fail testing for hazardous characteristics. However, that is not the case for CCRs, as they do not exhibit the
hazardous waste levels for the same constituents.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a1029

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11286_CHI

- 064

- 5 

### Organization 1 

### : Hoosier Energy Rural Electric Cooperative, Inc. 

### Commenter 1 : Michalene Reilly Commenter Type: Electric Utility Company
C lassification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.2.2 

### Comment Excerpt Text: Hoosier Energy asks EPA to look at the science and bring back the only possible fair and protective standard

- regulation under Subtitle D, with an opportunity for states to achieve primacy on regulation and enforcement.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the A gency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. This section of the preamble also includes a discussion of the statutory authority available to the Agency that dictates the type of sub title D regulation the Agency can promulgate. The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0 640

- 11287_CHI

- 065

- 2 

### 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: 4.1.3 2.1.6 

### Comment Excerpt Text: If ash must be regulated under RCRA, only the Subtitle D

- prime option should be considered. But USEPA should delay this rulemaking

- the ash proposal is premature. Extensive Information Collection Requests (ICRs) on the det ails of ash ponds at Electric Generating Units (EGUs) are only now being completed. USEPA recently sent two different teams to our plant site to investigate our ash handling practices, our ash ponds and our landfill, but the results or reports
from these t wo recent site investigations by USEPA have not yet even been completed, but should be part of the factual background on which the ash rule is based. Rulemaking without such detailed information, observations and analyses would be suspect, and wasteful of substantial public and private resources.1030

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disp osal of CCR in landfills and surface impoundments. This section of the preamble also includes a discussion of the statutory authority available to the Agency that dictates the type of subtitle D regulation the Agency can promulgate. The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid waste management plans. Contrary to the commenter’s statement the Agency has coordinated the development of this rule

with the ru le currently being developed by the Office of Water, for which the Agency solicited comment on their proposed rule. See preamble discussion in Unit III of the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11302_P

- 008

- 2 

### Organization 1 

### : Midwest Coal Ash Association (MCAA) 

### Commenter 1 : Gary P. Haney Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: We favor the development of federal regulations for coal ash under Subtitle D, and specifically believe that the “Subtitle D Prime” option is the best choice. Unlike the Subtitle C approach, D Prime will establish an environmentally protective program for coal ash disposal units without crip pling beneficial use and imposing unnecessary regulatory costs on power plants, threatening jobs and increasing electricity costs. And, the D Prime option will include impoundment design, inspection and maintenance requirements that should prevent any futu re TVA type failures.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11423_P

- 154

- 4 

### 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: 4.1.3 

### Comment Excerpt Text: PPL strongly opposes federal subtitle C regulation, and instead requests that EPA regulate CCRs under the subtitle "D prime" option, i ncluding a modification that integrates with current state regulatory programs such as Pennsylvania's Residual Waste and Dam Safety Regulations. This approach will create a reasonable and effective regulatory program that protects the environment,
retains options for beneficial use, and preserves jobs, while not adversely impacting our

economy.1031

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11477_L

- 054

- 2 

### Organization 1 

### : Duke Energy Indiana 

### Commenter 1 : Bryan Walsh Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
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 regulations. Clearly, there are state regulatory programs that already meet or exceed the proposed Subtitle D standards. States with qualified programs should be given the option of administering the f ederal Subtitle D rules if they so desire.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of 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 s states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11485_L

- 066

- 1 

### Organization 1 

### : American Electri c Power 

### Commenter 1 : Dana Sheets Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.1.2 4.1.3 

### Comment Excerpt Text: AEP supports regulation of CCRs under RCRA's non

- hazardous waste Subtitle D program and specifically under the Subtitle D Prime option. The difference between the Subtitle D proposal and D Prime is that the latter will not require the closure of surface im poundments that are being operated with no significant adverse effect on human health and the environment. The closure of surface impoundments (and hence conversion of the generating units to dry ash handling and construction of landfills) is a major cost associated with the proposal and minimizing this cost by allowing environmentally protective surface impoundments to continue to operate throughout their operating life will present the least cost impact to our customers. AEP does not support, nor
does it think that the science justifies, regulation of CCRs under the RCRA Subtitle C hazardous
waste rules.1032

The requirements for liners, groundwater monitoring, surface impoundment integrity, and corrective action are essentially the same under both Subtitle C and Subtitle D thereby providing the same level of environmental protection. It appears that the major hurdle for EPA concerning regulation under Subtitle D as opposed to Subtitle C is the perceived lack of Federal enforcement authority under Subtitle D. The EPA already has Subtitle D enforcement authority through the provisions of RCRA section 4010 (c) and 4005 (c) just as it did relative to the Subtitle D rules for Municipal Solid Waste Landfills in 40 CFR 258. Under this process, the States can be
af forded the opportunity to operate the Subtitle D program either by demonstrating that the state rules already are as stringent as the Federal Subtitle D rules or by adopting additional regulations
that include the minimum Federal Subtitle D standards. If S tate programs do not adopt the minimum Federal standards, the USEPA could step in with direct enforcement powers.

This is a win

- win situation for all involved. The EPA has the Subtitle D enforcement authority
that it wants and the States would be afford ed the opportunity to run 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. The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect s states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0 640

- 11568_L

- 016

- 1 

### Organization 1 

### : American Electric Power (AEP) 

### Commenter 1 : Richard Hayek Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: AEP supports the development of federal regulations for CCRs under RCRA's Subtitle D non

hazardous waste program. AEP believes the "Subtitle D Prime" option, if revised appropriately, would be the best path forward and establishes an environm entally protective program without destroying CCR beneficial use and imposing unnecessary regulatory costs on power plants, threatening jobs and increasing electricity costs for customers.

The Subtitle D Prime option is preferred because it would not requ ire the automatic closure of CCR surface impoundments that are operating in a manner that is fully protective of human health and the environment. AEP agrees that disposal units that are not fully protective must either be upgraded or closed; however, ther e are many CCR surface impoundments which are perfectly safe and protective of the environment. There is no reason why these units should not be allowed to continue operating.

Response: The Agency acknowledges and appreciates the comment. The commenter i s referred to Units IV and V of 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 IX1033

of the preamble for a discussi on on how EPA expect s states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11572_L

- 020

- 1 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG) 

### Commenter 1 : Dan Riedinger Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 3.1.2 4.2.4 

### Comment Excerpt Text: AS USWAG has testified at the last six hearings, the question for us is not whether to r egulate CCRs, but how to regulate CCRS. We continue to believe, after listening to all the testimony, that “Subtitle D Prime” option, with appropriate adjustments, is the best path forward.

USWAG appreciates that there are major differences of opinion re garding this rulemaking, but we are concerned that unless EPA is able to forge a consensus position, the question of whether and how to regulate CCRs will become a protracted battle in Congress and the courts. USWAG continues to believe, however, that a co nsensus position can be reached that meets the fundamental objectives of EPA and the varying stakeholder that is the development of federally enforceable standards for CCRs that are protective of human health and the environment. As EPA has pointed out, th e substantive standards between the Subtitle C and Subtitle D standards are essentially identical. Both would provide for the safe management of coal ash through the use of liner systems, groundwater monitoring, and corrective action.

Despite the similar ities between the two options, opponents of Subtitle D approach are concerned that the states will not vigorously enforce the Subtitle D regulations; thus, they want EPA enforcement authority. Opponents of the Subtitle C option, including USWAG, are concer ned that subjecting CCRs to hazardous waste regulation will result in excessive regulation, drive up energy costs and cripple beneficial use. Notwithstanding these differences, USWAG believes that there is a path forward that would
address the concerns of most the views reflected in this room and, most importantly, will ensure the successful implementation of a protective CCR regulatory program in a timely manner. Specifically, we continue to believe that EPA can develop federally enforceable Subtitle D

co ntrols for CCRs under the same authorities that it has used to develop federally enforceable Subtitle D controls for municipal solid wastes. USWAG has already provided EPA with the background of this approach so I won’t go into the details here. In short, however, we believe
that EPA can use its authorities under the combination of RCRA sections 4010 and 4005 to direct the states to establish Subtitle D controls and permit requirements for CCR disposal facilities and to step in and directly enforce those Su btitle D regulations if the states fail to do so. EPA itself has acknowledged that these sections of RCRA are unique in that they provide EPA with federal enforcement authorities for Subtitle D rules. [Footnote 1: 53 Fed. Reg. 33314, 33383 ( August 30, 198 8)]1034

The truth is that this approach

– having EPA direct the states to implement federal controls and stepping in if the states fail to do so

- is not fundamentally different than how the Subtitle C option would be implemented, though this Subtitle D appro ach would be implemented on a much quicker time schedule than would any Subtitle C option. It makes no sense to risk the downsides of the Subtitle C option when EPA can achieve essentially the same results without these risks under a federally enforceable Subtitle D option. This rulemaking is too important for EPA not get it right; therefore, we urge the Agency to be creative in using its existing authorities in Subtitle D to issue federally enforceable Subtitle D rules for CCRs. Such a result would be “win

- win” for all involved.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units 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 also referred to Unit IX of the preamble for a discussion on how EPA expect s states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11689_K

- 111

- 1 

### Organization 1 

### : American Electric Power (AEP) 

### Commenter 1 : Rick Hayek Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: AEP supports the development of federal regulations for CCRs under RCRA’s Subtitle D non

hazardous waste program. AEP believes the “Subtitle D Prime” option, if revised appropriately, would be the best path forward and establishes a n environmentally protective program without destroying CCR beneficial use and imposing unnecessary regulatory costs on power plants, threatening jobs and increasing electricity costs for customers.

The Subtitle D Prime option is preferred because it woul d not require the automatic closure of CCR surface impoundments that are operating in a manner that is fully protective of human health and the environment. AEP agrees that disposal units that are not fully protective must either be upgraded or closed; how ever, there are many CCR surface impoundments which are perfectly safe and protective of the environment. There is no reason why these units should not be allowed to continue operating.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of 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 s states to incorporate the CCR rules into state solid waste management plans.1035



### Comment Number: TRANS

- ARL

- 0029

- 1 

### 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: Let me say at the outset that USWAG favors the development of federal regulations for CCRs under RCRA Subtitle D, nonhazardous waste program. The question for us is not whether to regulate, but how to regulate. We have evaluated the alternatives and believe that the Subtitle D prime option is the best path forward. Unlike the Subtitle C approach, D prime will establish a
robust and environmenta lly protective program for coal ash disposal units without crippling coal ash beneficial use and imposing unnecessary regulatory costs on power plants, threatening jobs, and increasing electricity costs. USWAG shares the EPA's objective of having a regulat ory program that ensures the safe disposal of CCRs and the D prime option will meet this objective. One of the elements of the D prime option that makes it the preferred option is that it would not require the automatic closure of CCR surface impoundments that are operating in a manner that is fully protective of human health and the environment. We agree that disposal units that are not fully protective must either be upgraded or closed. However, there are many CCR surface impoundments which are perfectly safe. There is no reason why these units should not be allowed to continue operating

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of 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 s states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: TRANS

- CHI

- 0066

- 1 

### Organization 1 

### : Utility Solid Waste Activities Group 

### Commenter 1 : Jim Roewer Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: USWAG supports the development of federal regulations for coal ash under RCRA's Subtitle D

non

- hazardous waste program. Of the three options that EPA has presented, the Subtitle D Prime option with appropriate adjustments is the best path forward. Unlike the Subtitle C approach, D Prime which is directly enforceable by the states an d by citizens will enable EPA to establish environmentally protective programs across the states without crippling coal ash1036

beneficial use and imposing unnecessary regulations on power plants, threatening jobs and increasing electricity costs

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- CHI

- 0090

- 1 

### Organization 1 

### : Indiana Energy Association 

### Commenter 1 : Stan Pinegar Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examin e Context Assigned/Due:



### Comment Excerpt Text: The Indiana Energy Association submits that the appropriate route for USEPA is to regulate CCRs under Subtitle D Prime with modifications. Subtitle D Prime avoids many of the major flaws provided in the alternative Subtitle D option, including what we beli eve to be an arbitrary requirement to retrofit all surface impoundments regardless of the risk to the environment. Subtitle D Prime provides a framework for an appropriate platform for ensuring environmentally sound management of CCRs.
We do believe the S ubtitle D Prime option needs to be improved to allow for administration of the requirements by state regulatory agencies and through the traditional permitting programs. In addition, the schedule for closure of certain CCR disposal units must be reasonably extended to reflect realistic challenges of closing large units.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- CLT

- 0036

- 1 

### Organization 1 

### : Utility Solid Waste Activities Group 

### Commenter 1 : Pat McCabe Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: USWAG supports the Subtitle D Prime option, with appropriate adjustments, because of the options presented by EPA this is the one that best balances clean energy with affordability and reliability. USWAG shares EPA's objective of having a federal regulatory program that ensures the safe disposal of CCRs. The D Prime option will meet this objective. Opponents of a Subtitle D option persist on incorrectly stating that this would merely preserve the status quo under which EPA could only issue guidance. This is not the case. Under a Subtitle D option, EPA would issue federal regulations specifically designed for CCR disposal unit s.1037

These regulations would be directly enforceable by the states and the public under RCRA's citizen suit provision. EPA would also retain its imminent and substantial endangerment authority to take action against any CCR unit that posed a risk to human he alth or the
environment. We agree that disposal units that are not fully protective must either be upgraded or closed. However, there are many CCR surface impoundments which are perfectly safe. The D Prime option will allow for development of a regulatory program that meets all objectives. A major shortcoming, however, of either the proposed Subtitle D approach is the lack of a mechanism for the states to step in and administer the regulations. Clearly, there are state regulatory programs that already mee t or exceed the proposed Subtitle D standards. States with qualified programs should be given the option of administering the federal Subtitle D rules if they so desire

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



### Comment Number: TRANS

- CLT

- 0061

- 1 

### Organization 1 

### : Duke Energy 

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



### Comment Excerpt Text: Duke Energy strongly supports RCRA's Subtitle D nonhazardous program to regulate coal ash residuals, and specifically the D Prime Option. Subtitle D would raise the bar nationally for surface impoundment safety and achieve the environmental protection we all seek without the exponential costs and damaging consequences to the beneficial reuse industry. What would Subtitle D do? It would require electric utilities to either remove solids from existing surface impoundments and retrofit them with a composite liner or cease receiving residuals within five years of the effective date and close the unit. New impoundments could only be constructed with composite liners. Groundwate r monitoring would be required for all new and old landfills, provide continual assessment of any possible groundwater impacts. Utilities have safely managed residuals and hundreds of surface impoundments for decades. In the Carolinas, Duke Energy has had a robust monitoring maintenance inspection program for all of its ash basins since 1976. This involves daily observations, monthly inspections by plant staff, plus additional inspections anytime there are two inches of rain in 24 hours. Additional inspect ions by a licensed professional engineer and inspection every five years by an independent engineer have now been replaced due to new legislation in North Carolina with inspections by the North Carolina Dam Safety Program. This program was in place well be fore EPA's inspections currently underway1038

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- CLT

- 0062

- 4 

### Organization 1 

### : Progress Energy 

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



### Comment Excerpt Text: EPA's proposal to not regulate CCRs for beneficial use is appropriate for a regulatory program
under Subtitle D Prime. Most utilities endeavor to market as much of their CCRs as possible. This is better for the environment, the land or pond disposal, and provides unique and valued materials for many manufactured products, including high

- quality cement and wallboard.
EPA should be aware that the beneficial us e marker for CCRs is susceptible to market variations, which limits reliance on beneficial uses. Today, the supply of fly ash for cement and concrete and the supply of synthetic gypsum for wallboard far exceeds market demand. We need to find ways to increa se the consumptions of CCRs in these markets. There have been many key drivers to reuse volumes. In 2008, over 30 percent of the nearly 61 million tons of CCRs used were in other market applications. With the proper engineering design controls and quality assurance programs in place, Progress Energy supports other market applications. While we are working diligently to beneficially use CCRs, there will remain a significant quantity of CCRs that must be disposed of in landfills.
It should be considered tha t even with strong efforts to beneficially use CCRs, a permanent disposal option at reasonable cost will still be needed.

Response: The commenter is referred to Unit IV of t he preamble for a discussion o f EPA’s decision to regulate CCR under subtitle D o f 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: TRANS

- CLT

- 0066

- 1 

### Organization 1 

### : Utility Solid Waste Activities Group 

### Commenter 1 : Caroline Choi Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Let me say, at the outset, that the question for us is not whether to regulate, but how to regulate.
USWAG favors the deve lopment of federal regulations for coal ash under RCRA's Subtitle D nonhazardous waste program. Of the three options presented by EPA, the Subtitle D Prime option, with appropriate adjustments, is the best path forward. Unlike the Subtitle C approach, D1039

Pr ime will enable EPA to establish an environmentally protective program without crippling coal ash beneficial use and imposing unnecessary costs on power plants, threatening jobs and increasing electricity costs. Even EPA has agreed that hazardous waste reg ulation will result in excessive and unnecessary regulation. In its final regulatory determination for the four large volume coal ash waste streams where EPA concluded that hazardous waste regulation was not warranted for coal ash, the agency found that th e inflexible nature of the federal hazardous waste program would result in excess costs and unduly burdensome regulations for coal ash. Let me quote from the portion of EPA's final regulatory determination on this point: A Subtitle C system would require coal combustion waste units to obtain a RCRA Subtitle C permit, which would unnecessarily duplicate existing State requirements and would establish a series of waste unit design and operating requirements for these wastes, which would generally be in exces s of requirements to protect human health and the environment. Since coal ash sites vary widely in terms of topographical, geological, climatological, and hydrological characteristics, for example, depth to groundwater, annual rainfall, distance to drinkin g water sources, soil type, and the wastes potential to leach into the groundwater and travel to exposure points is linked to such factors, it is more appropriate for individual states to have the flexibility necessary to tailor specific controls to the si te or region

- specific risks proposed by these wastes. We couldn't have said it better, and nothing has changed since issuance of that determination that
alters this conclusion. Moreover, while we agree that steps must be taken to prevent accidents like t hat which occurred at TVA's Kingston facility from happening again, even EPA has found that coal ash being recovered from that site can be safely disposed of in a RCRA Subtitle D nonhazardous waste facility. The coal ash from the accident that was the impe tus for this rulemaking proceeding is, with EPA's explicit approval, being safely disposed of in a Subtitle D nonhazardous waste facility. And just last week, the Tennessee Department of Health, in conjunction with the Federal Agency for Disease Registry a nd Toxic Substances, issued a final public health assessment concluding that the coal ash from the accident did not result in groundwater contamination nor
result in ambient releases of ash above levels of concern. USWAG supports federal Subtitle D contro ls for coal ash, including dam integrity standards to help prevent future coal ash releases like that which occurred at TVA from happening again

Response: The commenter is referred to Unit IV of t he preamble for a discussion o f EPA’s 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: TRANS

- CLT

- 0131

- 2 

### Organization 1 

### : Duke Energy 

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



### Comment Excerpt Text: The Subtitle D Prime option, with appropriate adjustments, best balances clean energy with
afforda bility and reliability. Adopting the Subtitle D Prime option will achieve the same long

-1040

term environmental goals on a more realistic time frame. With a reasonable, science

- based approach, we can design federal regulations that ensure the safe management of CCRs without significantly raising costs for customers and jeopardizing national electric reliability

Response: The commenter is referred to Unit IV of t he preamble for a discussion o f EPA’s 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: TRANS

- CLT

- 0161

- 3 

### Organization 1 

### : Duke Energy 

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



### Comment Excerpt Text: Another significant flaw is that the environmental groups have not consulted with the very sta tes whose programs they allege are deficient. These states contest these allegations and charge that the environmental groups have improperly characterized the effectiveness of their state controls. Assuming the allegations have any factual basis, USWAG a nd Duke Energy support a Subtitle D program that will involve groundwater monitoring controls specifically designed to detect any
contamination before it moves off

- site. Duke Energy supports federal regulations that will actually address the potential thre ats that the environmental groups allege may occur from these
sites. If Duke Energy determines an impact to groundwater has occurred at any of its facilities, the appropriate regulatory agency is notified and proper next steps taken to ensure public safet y. In North Carolina, Duke Energy voluntarily initiated ash basin groundwater monitoring more than six years ago and has taken substantial measures to reduce or eliminate potential environmental impacts

Response: The commenter is referred to Unit IV of t he preamble for a discussion o f EPA’s 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: TRANS

- DAL

- 0016

- 1 

### Organization 1 

### : American Electric Power 

### Commenter 1 : David Miller Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text:1041

AEP supports the development of federal regulations for CCRs under RCRA's Subtitle D non

hazardous waste program. AEP believes the Subtitle D prime option, if revised appropriately, would be the best path forward and establishes an environmentally protective program witho ut destroying CCR beneficial use and imposing unnecessary regulatory cost on power plants, threatening jobs, and increasing electricity costs for our customers. The Subtitle D prime option is preferred because it would not require automatic closure of CCR service impoundments that are operating in a manner that is fully protective of human health and the environment. AEP agrees that disposal units that are not fully protective must either be upgraded or closed. However, there are many CCR service impoundme nts which are perfectly safe and protective of the environment. There is no reason why these units should not be allowed to continue operating.

Response: The commenter is referred to Unit IV of t he preamble for a discussion o f EPA’s decision to regulate C CR 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: TRANS

- DAL

- 0086

- 3 

### Organization 1 

### : Entergy Corporation 

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



### Comment Excerpt Text: Entergy has evaluated the alternatives contained in EPA's proposed rule and believes that the
Subtitle D Prime option is the best solution. Unlike the Subtitle C approach, D Prime will establish a robust and environmentally protective program for coal ash storage and disposal units without crippling coal ash beneficial use and imposing unnecessary regulatory costs on power plants, threatening jobs and increasing electricity costs. The Subtitle D Prime option recognizes that existing CCR impoundments with sound performance should be allowed to continue to operate. However, Entergy feels that the Subtitle D Prime op tion, 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 thro ugh a traditional permitting framework. Entergy also believes that this option does not limit EPA's enforcement authority since 4010(c) of RCRA and similar provisions clearly allow the EPA to oversee state rules regulating solid waste. EPA already does th is with municipal solid waste landfills and non

- municipal solid waste landfills that may receive conditionally exempt small quantity generator hazardous waste. For these reasons, we ask the EPA to select the Subtitle D Prime option in its final rule.

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 also referred to Unit IX1042

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



### Comment Number: TRANS

- DEN

- 0013

- 1 

### Organization 1 

### : Platte River Power Authority 

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



### Comment Excerpt Text: Platte River prefers the development of federal regulations for CCRs under R CRA Subtitle D, nonhazardous waste rules. Additionally, EPA should select the Subtitle D prime option as the appropriate course to pursue within the Subtitle D framework because it avoids the absolute requirements to retrofit all surface impoundments irres pective of their environmental performance. This option correctly recognizes that existing CCR impoundments should be allowed to continue operating provided that these units meet applicable groundwater monitoring and structural standards and thus are oper ating in an environmentally sound manner. The State of Colorado must be given a role in implementation of the Subtitle D option. This will avoid duplication with existing state programs and provide the Subtitle D option with the direct permitting mechanis m the EPA wants. EPA already has authority under Section 4010(c) to issue federally enforceable rules under
Subtitle D for CCRs.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- DEN

- 0022

- 2 

### Organization 1 

### : Intermountain Power Service Corporation 

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



### Comment Excerpt Text: Although a tragedy, the TVA Kingston spill was not caused by the so

- called toxicity or any characteristic specific to CRR. Any bulk material dammed in the same circumstance would also fail. Poor dam design, construction, or maintenance should not be the ba sis for overreaching regulation. One of the elements of the D prime option that makes it the preferred option is that it would not require the automatic closure of CCR surface impoundments that are designed and operating in a manner which is fully protect ive of human health and the environment, such as at IPP.1043

We agree that disposal facilities that are not fully protective must either be upgraded or closed. However, there are many CCR surface impoundments which are perfectly safe. There is no reason why th ese units should not be allowed to continue operating.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- DEN

- 0026

- 2 

### Organization 1 

### : Arizona Electric Power Cooperative 

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



### Comment Excerpt Text: For these reasons, Arizona Electric Power Cooperative supports the development of CCR regulation under the Subtitle D prime option. We believe that this regulatory option will best accomplish the objectives of ensuring that CCR disposal facilities, like those at Apache Station, will continue to be appropriately monitored to ensure they are operated in a safe manner.
B ut unlike the Subtitle C approach, the D prime option would establish comprehensive environmentally sound regulations for coal ash disposal without imposing unreasonable and unnecessary costs on rural electric rate payers.

Response: The Agency acknowledge s and appreciates the comment.



### Comment Number: TRANS

- DEN

- 0039

- 1 

### Organization 1 

### : Utility Solid Waste Activities Group 

### Commenter 1 : Jim Roewer Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Let me say at the outset that USWAG supports the development of federal regulation for CCRs under RCRA's Subtitle D nonhazardous waste program. The question is not whether to regulate but now to regulate. Having evalu ated the alternatives proposed, the Subtitle D prime option, with appropriate adjustments, is the best path forward. Unlike the Subtitle C approach, D prime will enable EPA to establish an environmentally protective program without crippling beneficial use , imposing unnecessary costs on power plants, threatening jobs, and increasing electricity costs. Opponents of the Subtitle D option persist in incorrectly stating that this would merely preserve the status quo under which the EPA can only issue guidance. This is not correct.1044

Under the Subtitle D option, EPA would issue federal regulations specifically designed for CCR disposal units. These regulations would be directly enforceable by the states and the public under RCRA's citizen suit provision and viola tors would be subject to significant civil penalties. EPA would also retain its imminent and substantial endangerment authority to take action against any CCR unit that poses a risk to human health or the environment. Ask any utility that
has been the sub

ject of a RCRA citizen suit, with injunctive relief and civil penalties in the balance, whether it views these regulations as mere guidance. These are real regulations with teeth, and it is misleading to suggest otherwise

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of 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 refe rred to Unit IX of the preamble for a discussion on how EPA expect s states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: TRANS

- DEN

- 0049

- 1 

### 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:
Other Sections: 4.1.3 

### Comment Excerpt Text: Let me begin by stating that APS supports the development of federal regulatio ns for CCRs under RCRA's Subtitle D nonhazardous waste program, and we believe that Subtitle D prime is the appropriate option. Not only will this approach create an environmentally protective program for coal ash disposal, it will do so without crippling beneficial use and imposing unnecessarily

-- unnecessary regulatory costs. A concern we have about both Subtitle D and D prime options, however, is the lack of any mechanism for states to step in and administer the regulations. Many states, including Ariz ona, have regulatory programs in place that meet or exceed the Subtitle D standards in EPA's proposal. So rather than throw the proverbial baby out with the bath water, APS encourages EPA to allow qualified state programs to administer 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 surfa ce impoundments. The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect s states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: TRANS

- KNX

- 0024

- 1 

### Organization 1 

### : Haley & Aldrich1045



### Commenter 1 : Chris Hardin Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: Haley & Aldrich supports development of federal regulations for C CRs. And that's defined as coal combustion residuals, or in many cases products, under RCRA Subtitle D, non

- hazardous waste program. We agree with the EPA substantive standards in Subtitle D and Subtitle C are essentially the same. They both provide for sa fe management of coal ash through the use of liner systems, groundwater monitoring and corrective action. However, Subtitle D will provide a regulatory platform that would accomplish these goals without severely impacting CCR beneficial reuse, threatening jobs, and increasing electricity costs for customers by imposing unnecessary costs on the utility industry. We agree with the EPA that CCR units that are not fully protected must be updated, upgraded, or closed. However, CCR impoundments that can be demo nstrated to be safe and protective of the environment should be allowed to continue operating. We believe that the Subtitle D prime option with appropriate adjustments is the best pass forward and will enable EPA to establish an environmentally

- protective program that meets the objectives of EPA, namely enforceable standards of CCRs, that are 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 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 also referred to Unit IX of the preamble for a discussion on how EPA expect s states to incorp orate the CCR rules into state solid waste management plans.

T he commenter is also referred to Units IV and VI for a complete discussion of the beneficial use aspects of the rule.



### Comment Number: TRANS

- KNX

- 0055

- 1 

### Organization 1 

### : American Electric Power 

### Commenter 1 : Matt Powell Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: AEP agrees with the views of the bipartisan group of 165 members of Congress, 45 U.S. Senators, majority of states, multiple federal agencies, municipal and local governments, CCR marketers, and beneficial users, and many other third parties which have mai ntained that regulating CCRs under RCRA's hazardous waste program is simply regulatory overkill. AEP1046

supports regulation of CCR under RCRA's non

- hazardous waste Subtitle D program, and specifically under the Subtitle D option.
The difference between the S ubtitle D proposal and D prime is that the latter will not require the closure of surface impoundments that are being operated with no significant adverse effect on human health and the environment. The closure of surface impoundments, and hence, the

conve rsion of the generating units to dry handling, and construction of landfills is a major cost associated with the proposal, and minimizing this cost by allowing environmentally protective surface impoundments to continue to operate throughout their operatin g life would present the least cost impact to our customers.

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a compl ete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: TRANS

- LVL

- 0002

- 1 

### Organization 1 

### : Utility Solid Waste Activities Group 

### Commenter 1 : Dan Riedinger
Comme nter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: As USWAG has testified the last six hearings, the question for us is not whether to regulate CCRs but how. We continue to believe, after listening to all testimony, that the Subtitle D Prime option, with appropriate adjustments, is the best fast forward. USWAG appreciates that there are major differences of opinion regarding the rulemaking, but we're concerned that unless EPA is able to forge a consensus position, the question of whether and how to regulate CCRs will become a protracted battle in Congress and perhaps the courts. USWAG continues to believe, however, that a consensus position can be reached that meets the fundamental objectives of EPA and the varying stakeholders; that is, the development of federally enforceable standards for CCRs that are p rotective of human health and the
environment. As the EPA has pointed out, the substantive standards between the Subtitle C and D approaches are essentially identical. Both would provide for the safe management of coal ash through the use of liner systems , groundwater monitoring and corrective action. Despite the similarities between the two options, opponents of Subtitle D are concerned that the states will not vigorously enforce the Subtitle D regulations, thus, they want EPA enforcement authority. Opp onents of Subtitle C, including USWAG, are concerned that subjecting CCRs to hazardous waste regulation will result in excessive regulation, drive up energy costs and cripple beneficial use. USWAG believes that there is a path forward that would address th e concerns of most of the views reflected in this room, and most importantly, will ensure the successful implementation of1047

a protective CCR regulatory program in a timely manner. Specifically, we continue to believe that EPA can develop federally enforceab le Subtitle D controls for CCRs under the same authorities that it has used to develop federally enforceable Subtitle D controls for municipal and
solid wastes. We believe that EPA can use its authorities under the combination of RCRA
Sections 4010 and 400 5 to direct the states to establish Subtitle D controls and permit requirements for CCR disposal facilities and to step in and directly enforce those Subtitle D regulations if the states fail to do so. This approach also would be implemented on a much quic ker time schedule than would any Subtitle C option. It makes no sense to risk the downsides of Subtitle C when EPA can achieve essentially the same results without those risks under federally enforceable Subtitle D option. This rulemaking is too important for EPA not to get it right. Therefore, we urge the agency to be creative in using its existing authorities in Subtitle D to issue federally enforceable Subtitle D
rules for CCRs. Such a result would be a win

- win for all involved

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive

di scussion of the technical requirements of the rule.



### Comment Number: TRANS

- LVL

- 0015

- 1 

### Organization 1 

### : Duke Energy 

### Commenter 1 : Ron Ehlers Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assig ned/Due:



### Comment Excerpt Text: Duke Energy strongly supports developing federal regulations for coal combustion residuals
under RCRA's Subtitle D non

- hazardous waste program. Opponents of Subtitle D say this option is a free ride for utilities. However, the reality is Subtitle D significantly raises the bar in terms of retrofitting and closing CCR impoundments, including accelerated closure schedules that are impractical and not feasible the way they are currently proposed. The Subtitle D proposal require s that unlined impoundments no longer be used five years after the rule is finalized. It also requires that impoundments be officially closed within 180 days after the impoundment

-- the closure begins. Both of these time frames are unrealistic, and closin g these ponds safely, from an engineering perspective, will be val

-- very challenging. The cost to comply with requirements to install liners in existing unlined impoundments will drive most plants with these types of impoundments to either retire or con vert to dry CCR handling. New landfills will have to be sited, designed and constructed prior to beginning pond closure. Given the number of new landfills that would be required, it is unlikely that these could
be readied in time.
If these were hazardous waste landfills, as required under a Subtitle C hazardous waste program, even more time would be needed, assuming that a hazardous waste landfill could successfully be sited and permitted. Also, the immediate and significant increase in demand for dry hand ling systems across the country will result in lengthy procurement and installation time frames. This1048

makes the five

- year deadline impractical and would adversely impact power plant availability.
The time needed to de

- water the unit, construct a cap, to i nstall the necessary storm water controls, while complying with our NPDES permits, would also require more than 180 days. The EPA should consider closure plans to start within 30 days of the final receipt of waste, but the implementation of the closure pla ns and completion of construction should be determined by best engineering practices. The Subtitle D Prime option, with appropriate adjustments, best balances clean energy with affordability and reliability. Adopting the Subtitle D Prime option will achie ve the same long

term environmental goals on a more realistic time frame. With a reasonable, science

- based approach, we can design federal regulations that ensure the safe management of CCRs without significantly ra

-- raising the cost for customers and je opardizing national electric reliability

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: TRANS

- LVL

- 0044

- 1 

### Organization 1 

### : Duke Energy Indiana 

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



### Comment Excerpt Text: Duke Energy Indiana supports the Subtitle D Prime option, with appropriate adjustments. This is because of the three options presented by EPA, this is the one that best balances clean energy with affordability and reliability. Duke Energy shares EPA's obje ctive of having a federal regulatory program that ensures the safe disposal of CCRs. The D Prime option will meet this objective. Opponents of the Subtitle D option persist on incorrectly stating that it would merely preserve the status quo under which EP A could only issue guidance. This is not the case. Under a Subtitle D option, EPA would issue federal regulations specifically designed for CCR disposal units. These regulations would be directly enforceable by the states and the public under RCRA's
Citize n Act Provision. EPA would also retain its imminent and substantial endangerment authority to take action against any CCR unit that posed a risk to human health or the
environment. We agree that the disposal units that are not fully protective must be upg raded and must be regulated. However, there are many CCR surface impoundments which are perfectly safe. The D Prime option will allow for development of a regulatory program that meets both of these objectives1049

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive
discussion of the techn ical requirements of the rule.



### Comment Number: TRANS

- LVL

- 0045

- 5 

### Organization 1 

### : Duke Energy 

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



### Comme nt Excerpt Text: Duke Energy supports a Subtitle D program that will involve groundwater monitoring controls specifically designed to detect any contamination from the CCR waste management units before contamination moves offsite. If Duke determines an impact to groundwate r has occurred at one
of if

-- its facilities, the appropriate federal or state regulatory agencies are notified, and we work with those regulators in determining the appropriate steps to be taken to remediate the impact to groundwater. Further, Duke has taken measures to reduce or eliminate any known risks for potential future impacts at the other Duke facilities

Response: The Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: TRANS

- LVL

- 0054

- 1 

### Organization 1 

### : American Electric Power 

### Commenter 1 : Dana Sheets Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: . AEP supports regulation of CCRs under RCRA's non

- hazardous waste Subtitle D program, and specifically under the Subtitle D Prime option. The difference between Subtitle D and D Prime is that the latter will not require the closure of surface impoundments that are being operated with no significant adverse effect on human health and the environment. The closure of surface impoundments and, hence, conversion of the generating units to dry ash handling and construction of landfills is a major cost associate d with the proposal.1050

And minimizing this cost by allowing environmentally

- protective surface impoundments to continue to operate throughout their operating life will present the least

- cost impact to our

customers. AEP does not support, nor does it think, that the science justifies, regulation of CCRs under the RCRA Subtitle C hazardous waste rules. The requirements for liners, groundwater monitoring, surface impoundment integrity, and corrective action are essentially the same under both Subtitle
C and Su btitle D, thereby providing the same level of environmental protection. It appears that the major hurdle for EPA concerning regulation under Subtitle D as opposed to Subtitle C is a perceived lack of federal enforcement authority under Subtitle D. The EPA already has Subtitle D enforcement authority through the provisions of RCRA Section 4010 and 4005, just as it did relative to the Subtitle D rules for Municipal Solid Waste Landfills. Under this process, the states can be afforded the opportunity to oper ate the Subtitle D program either by demonstrating that the state rules already are as stringent as federal Subtitle D rules or by adopting additional regulations that include the minimum federal standards. If state programs do not adopt the minimum federa l standards, the US EPA could step in with direct enforcement authority.
This is a win

- win situation for all involved. The EPA has the Subtitle D enforcement authority that it wants, and the states will be afforded the opportunity to run the program.
In addition, the stigma and liabilities associated with CCR reuse applications under the hazardous waste Subtitle C option that would, in effect, kill the ash

- utilization industry, along with the many thousands of associated jobs, would be avoided. Finally, under Subtitle D, cost impacts to utility customers would be minimized while protecting
human health and the environment.

Response: The Agency acknowledges and appreciates this comment, however the Agency is not promulgating the subtitle D prime option th at was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the r ule.



### Comment Number: TRANS

- LVL

- 0055

- 4 

### Organization 1 

### : Vectren Corporation 

### Commenter 1 : Angila Retherford Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: Vectren supports EPA's objective of having a federal regulatory program that ensures the safe disposal of CCRs. As a result, Vectren supports the Subtitle D Prime option with appropriate adjustments. Because of the three option s presented by EPA, this is the option that best balances clean energy with affordability and reliability. We believe that this regulatory option will best accomplish the objective of ensuring that CCR disposal facilities will be appropriately monitored t o ensure that they're operated in a safe and1051

environmentally

- sound manner, and continue to fully support and incentivise the beneficial reuse of CCRs. But unlike the Subtitle C approach, the D Prime option would establish comprehensive regulations for coal

- ash disposal without imposing unreasonable and unnecessary costs on electric rate payers.

Response: The Agency acknowledges and appreciates this comment, however the Agency is not promulgating the subtitle D prime option that was presented in the propos ed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: TRANS

- PIT

- 0006

- 3 

### 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: 3.1.2 

### Comment Excerpt Text:

PPL st rongly opposes federal Subtitle C regulation, and instead requests that EPA regulate CCR's under the Subtitle D prime option, including a modification that integrates with current state regulatory programs such as Pennsylvania's Residual Waste and Dam Safe ty Regulations. This approach will create a reasonable and effective regulatory program that protects the environment, retains options for beneficial use, and preserves jobs, while not adversely impacting our economy.

Response: The Agency acknowledges an d appreciates this comment, however the Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory appr oach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.



### Comment Number: TRANS

- PIT

- 0056

- 1 

### Organization 1 

### : Midwest Coal Ash Association 

### Commenter 1 : Gary Haney Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.1.3 

### Comment Excerpt Text: We favor the development of federal regulations of coal ash under Subtitle D, and specifically1052

believe that the Subtitle D Prime optio n is the best choice. Unlike Subtitle C, D Prime will establish an environmentally protective program for coal ash disposal units without crippling beneficial use and imposing unnecessary regulatory costs on power plants, threatening jobs and increasing el ectricity costs. The Prime D option will include impoundment design, inspection and maintenance requirements that should prevent any future TVA type failures.

Response: The Agency acknowledges and appreciates this comment, however the Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a compr ehensive discussion of the technical requirements of the rule.



### Comment Number: TRANS

- PIT

- 0059

- 1 

### Organization 1 

### : American Electric Power 

### Commenter 1 : Steven Orenchuk Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Curre nt Task: Examine Context Assigned/Due:
Other Sections: 3.1.2 4.1.3 

### Comment Excerpt Text: It is my professional opinion that the US EPA's proposed regulation of CCRs under the RCRA Subtitle C hazardous waste rules is excessive and unwarranted. The correct approach for US EPA to take is to regulate CCRs under the Subtitle D Prime option. Regula tion of CCRs under the RCRA Subtitle C hazardous waste rules is not worth the incremental environmental gain versus the extreme financial costs which will accompany this level of regulation. It is necessary that in any type of rulemaking, U.S. EPA is cogni zant of the broad economic impacts which there will be in response to such an undertaking. Protection of human health and the environment from the disposal of CCRs regulated under the Subtitle D Prime option is more than acceptable considering the potentia l threat that these materials pose. In addition to providing the necessary protection of human health and the environment, the Subtitle D Prime option will bear the least cost on the end user of coal

- fired electric generation, i.e. customers like you and I

. Since the promulgation of CCR regulations under the Subtitle D Prime option affords the necessary level of protection of human health and the environment without imposing the unnecessary costs associated with over regulation, how can U.S. EPA in good co nscience propose a set of regulations as irresponsible as the Subtitle C hazardous waste regulations for managing CCR disposal? This type of action is illogical and represents the wasteful allocation of the American public's financial resources.

Response: The Agency acknowledges and appreciates this comment, however the Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discu ssion of the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical requirements of the rule.1053

Section 4.5.2

- EPA solicits comment on alternative approach using CCR SI assessment program instead of phase

- out of CCR SIs, and effectiveness of annual SI assessments in ensuring structural integrity of CCR SIs over long term (35210, 35223) Total Number of Submissions: 6 Total Number of Comments: 6



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 04022

- 4 

### Organization 1 

### : Commenter 1 : Larry D. Conley Commenter Type: Private Citizen
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Subtitle "D Prime" addresses the real concerns, such as impoundment integrity, water quality implic ations, and regulatory oversight. This rule still allows existing coal ash impoundments to continue operating if they are operating in an environmentally sound manner.

Response: The Agency acknowledges and appreciates this comment, however the Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a comprehensive di scussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 160 

### 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 endorses this approach. The structural integrity dike inspections should remain with the department's Division of Water, where the current expertise res ides. RCRA was not intended to address structural integrity.

Response: The Agency acknowledges and appreciates the comment.1054



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 51 

### 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: 2. Surface Impoundments That Do Not Pose a Threat to Human Health or the Environment Should Be Able to Operate for Their Entire Useful Lives.

A modified Subtitle D Prime approach would allow EPA’s CCB regulation to address

appropr iate construction, maintenance, and management of CCB impoundments. At a minimum, additional CCB closure regulations should be implemented only on a unit

- specific, risk

- based basis that allows effective disposal units to operate for the remainder of their useful lives. For additional discussion, see Parts II.B.1 and 7 above, regarding Subtitle D. The discussion is equally applicable to the Subtitle C proposal. Closure requirements should be risk

- based and site

specific.

A one

- size

- fits

- all approach to clo sure of existing facilities under any regulatory option would not be appropriate given the disparity in size, location, and design that exists among CCB surface impoundments and landfills, not only nationwide, but also within individual utilities. Instead, closure requirements should be tailored to individual units under closure plans based upon information obtained through groundwater monitoring and other risk assessment techniques.
Such site

- specific closure would be not only more efficient and practical than adherence to the rigid Subtitle C unit

- closure regulations, it would also be more effective because it would allow for utilization of the latest technologies and techniques to assure appropriate closure.

Furthermore, EPA is proposing to apply the Su btitle C hazardous waste rules retroactively to previously closed and/or inactive CCB surface impoundments. In such “reclosure” cases, EPA should consider alternatives to Subtitle C closure standards under a flexible, site

- specific program that would be pr otective of human health and the environment. Alternative cleanup methods sufficiently protective of human health and the environment would need to be considered in these cases, or if it could be demonstrated that there was no impact to human
health and th e environment beyond the boundaries of the plant, the facility would need to be allowed to remain closed with no further action. The regulations should allow utilities to demonstrate whether existing or closed surface impoundments and/or landfills are prot ective of human health and the environment. Groundwater monitoring efforts could largely provide this
information. Additional methods could include: water

- supply well surveys to demonstrate distance to the nearest receptor; definition of hydrogeology (e.g. , hydraulic conductivity, presence of confining beds); natural attenuation capacity of the geologic media; groundwater modeling; and risk assessment. For additional information regarding Southern Company’s1055

position on closure requirements and alternative c losure, see Part II.B.7, which is also relevant to the Subtitle C proposal

Response: The Agency acknowledges and appreciates this comment, however the Agency is not promulgating the subtitle D prime option that was presented in the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a complete discussion of the regulatory approach EPA is adopting as well as a compr ehensive discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06410

- 66 

### Organization 1 

### : Commenter 1 : Anonymous Commenter Type: Anonymous
Classification: Substantive Comment Category:
Current Task: Examine Context Assi gned/Due:



### Comment Excerpt Text: I believe establishing a fund for structural stability assessments of impoundments is appropriate. Structural stability of facilities is necessary to avoid costly cleanups and repairs. Emphasizing structural stability (which can include cap and cover maintenance, erosion control, and run

on/run

- off issues) also has the potential to reduce groundwater issues at facilities. In addition,
subtitle D self

- implementing regulations can use this assessment as oversight. Structu ral stability assessments appear to have multiple benefits and should be enforced as the key for this proposal’s outcome.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06411

- 14 

### 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: 7.1.2.5 

### Comment Excerpt Text:

EPA a lso solicits comment on the proposal to establish and fund a program for conducting routine structural stability assessments of certain surface impoundments. While the Department currently has no such program of its own, we are concerned about the extent o f EPA's expertise in this area. Further, ADEM strongly opposes EPA's use of its "appropriate enforcement authorities" as related to the findings of these structural assessments. Like the requirements of the rest of the proposal, we firmly believe it should be the States that have the primary1056

enforcement responsibility as it relates to these requirements. Should such a program be established and funded, EPA should provide this funding to the States through existing grant agreements and it should be then incu mbent upon the States to implement the assessment programs and to take any appropriate enforcement necessary to compel subject facilities to respond to issues found concerning their impoundments.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 27 

### 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: 7.1.2.4 

### Comment Excerpt Text: 9. Pg. 35210, Alternative RCRA Subtitle D Approaches: This approach redacts the proposed phase

- out of surface impoundments but would allow the EPA to establish a fund and program to conduct annual structural stability inspections of surface impoundments with “high” or “significant” hazard potential ratings.

Surface impoundments with “high” or “significant” hazard potential ratings are already subject to inspection by Arizona’s dam safety program. The assessment work to be performed by EPA would be duplicative of Arizona’s current inspection work. EPA should inspect those surface impoundments that are not regulated by Arizona’s dam safe ty program.

The preamble states that the EPA would require facilities to respond to issues identified with their surface impoundments through RCRA, CERCLA, and/or CWA authorities. a) If this action occurs in an authorized state, would the enforcement resp onsibility rest wholly with the EPA or would it fall upon the state to respond? b) As the purpose of the proposed rules is to create authorities not currently found in existing programs, how does the EPA intend to compel remedial actions through those pro grams via this option?

Response: The Agency acknowledges and appreciates the comment.

Section 4.7

- Subtitle D Regulatory Language Changes/Suggestions Total Number of Submissions: 54 Total Number of Comments: 121



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 01418

- 1 

### Organization 1 

### : Zephyr Environmental Corporation1057



### Commenter 1 : Paul C. Moore Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.4.5.1.1 4.4.7 .2 4.4.7.4 7.4.1 

### Comment Excerpt Text: I noted that subsections 257.62 through 257.64 of Alternative 1: Co

- Proposal Under Authority of
Subtitle D

- PART 257 restrict the characterization, study, appraisal, investigation, analysis, geoscientific review and evaluation of fault areas, seismic impa ct zones and unstable areas (geologic related hazards) to registered professional engineers. This restriction is in opposition to many state statues that define such work as the public practice of geology or geosciences. My home state, Texas, has such a st atute. The Texas Geoscience Practice Act also allows the making of recommendations regarding the geoscientific components of the engineered structure, work, or process by a licensed geoscientist. A Texas licensed professional engineer who normally performs service or work that is both engineering and geoscience is not required to be a licensed geoscientist under this Act.

Title 30 of the Texas Administrative Code, Chapter 330 requires that studies of differential subsidence or faulting be conducted by eit her a licensed professional geoscientist qualified to evaluate conditions of differential subsidence or faulting or a licensed professional engineer experienced in geotechnical engineering.

I therefore strongly recommend that "or a licensed professional geologist/geoscientist" be added after "professional engineer" in proposed 257.62 through 257.64 to bring the proposed regulation concurrence with state statutes and regulations.

Response: The commenter is referred to the discussion found in Unit V.C of the preamble that provides the rationale behind the Agency’s decision to modify the qualification s of those individuals that must certify technical demonstration made by the owner or operator of the

CCR unit. The Agency in this rule is requiring that onl y a qualified professional engineer, as defined in the rule, may make these certifications.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03444

- 33 

### 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: 4.4.4.6 

### Comment Excerpt Text: Location Restrictions (P. 35241) Rule as proposed
Sec. 257.60 Placement above the natural water tab le.1058

(a) New CCR landfills and new CCR surface impoundments and lateral expansions must be constructed with a base that is located a minimum of two feet above the upper limit of
the natural water table. (b) For purposes of this section, natural water table means the natural level at which water stands in a shallow well open along its length and penetrating the surficial deposits just deeply enough to encounter standing water at the bottom. This level is uninfluenced by groundwater pumping or other engineered activities.

For the geological conditions encountered in Kansas, and the location restrictions currently in Kansas solid waste regulations for siting all solid waste landfills, including Subtitle D municipal solid waste landfills, this proposed language is confusing and contradictory. Kansas requests this
section to be modified to read as follows:

Sec. 257.60 Placement above the uppermost aquifer.

New CCR landfills and new CCR surface impoundments and lateral expansions must be
constructed with a base t hat is located a minimum of five feet above the upper limit of the uppermost aquifer as defined in proposed regulation 257.40 and certified by a qualified groundwater scientist, professional geologist, or professional engineer.

Response: The commenter is referred to the discussion found in Unit V.C of the preamble that provides the rationale behind the Agency’s decision to modify the qualification s of those individuals that must certify technical demonstration made by the owner or operator of the

CCR unit. The Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, may make these certifications.



### Com ment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03444

- 34 

### 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: 4.4.5.1.2 

### Comment Excerpt Text:
Section 257.70 Rule as proposed Sec. 257.70 Design criteria for new CCR landfills and lateral expansions. (a) New CCR landfills and lateral expansions of CCR landfills shall be constructed: (1) With a composite liner, as defined in paragraph (a)(2) of this section and a leachate collection system that is designed and constructed to maintain less than a 30

- cm depth of leachate over the liner. The design of the composite liner and leachate collection syst em must be prepared by, or under the direction of, and certified by an independent registered, professional engineer. (2) For purposes of this section, composite liner means a system consisting of two1059

components; the upper component must consist of a minim um 30

- mil flexible membrane liner (FML), and the lower component must consist of at least a two

- foot layer of compacted soil with a hydraulic conductivity of no more than lxl0

- 7 cm/sec. FML components consisting of high density polyethylene (HOPE) shall be at least 60

- mil thick. The FML component must be installed in direct and uniform contact with the compacted soil component. (3) For purpose of this section, hydraulic conductivity means the rate at which water can move through a permeable medium. (i.e., t he coefficient of permeability). (b) [Reserved]

For the geological and climatic conditions encountered in Kansas this proposed language is limiting and would not allow designs which can be equally protective while having the advantage of being sustainable indefinitely into the future. Capillary barrier designs using in

- situ materials and geosynthetic clay liners have been used successfully in Kansas landfills located in areas of low precipitation. Other liner designs consisting of compacted clay have been adequately protective as demonstrated by years of groundwater monitoring in areas of eastern Kansas with higher precipitation and more shallow groundwater. A composite Subtitle D liner is clearly not needed to protect groundwater or surface water in all ge ologic and climatic scenarios. States should have the flexibility to review and approve of alternative liner designs that will provide adequate protection. Therefore, Kansas requests that paragraph (a)(I) of this section be
modified to allow alternate desi gns as follows:

1) With a composite liner, as defined in paragraph (a)(2) of this section and a leachate collection system that is designed and constructed to maintain less than a 30

- cm depth of leachate over the
liner or an alternate design approved by t he Director of an approved state that demonstrates that leachate will be contained or managed in a manner that is protective of ground water and surface water. The design of the composite liner and leachate collection system must be prepared by, or under t he direction of, and certified by an independent registered, professional engineer. (modification in italics)

Response: While this comment specifically addresses alternative liner design, it includes a reference to an independent registered professional e ngineer. With regard to this issue, the commenter is referred to the discussion found in Unit V.C of the preamble that provides the rationale behind the Agency’s decision to modify the qualification s of those individuals that must certify technical demons tration made by the owner or operator of the CCR unit. The Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, may make these certifications.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03444

- 35 

### Organization 1 

### : Kansas Department of Health and Environment 

### Commenter 1 : William L. Bider Commenter Type: State Government
Classification: Substantive Comment Category:1060

Current Task: Examine Context Assigned/Due:
Other Sections: 4.4.5.1 

### Comment Excerpt Tex t:
Section 257.71 Rule as proposed Sec. 257.71 Design criteria for existing CCR surface impoundments. (a) No later than [five years after effective date of final rule] existing CCR surface impoundments shall be constructed: (1) With a composite liner, as d efined in paragraph (a)(2) of this section and a leachate collection system between the upper and lower components of the composite liner. The design shall be in accordance with a design prepared by, or under the direction of, and certified by an independe nt registered professional engineer. (2) For purposes of this section, composite liner means a system consisting of two components; the upper component must consist of a minimum 30

- mil flexible membrane line (FML), and the lower component must consist of a t least two

- foot layer of compacted soil with a hydraulic conductivity of no more than lx10

- 7 cm/sec. FML components consisting of high density polyethylene (HOPE) shall be at least 60

- mil thick. The FML component must be installed in direct and uniform co ntact with the compacted soil component. (3) For purposes of this section, hydraulic conductivity means the rate at which water can move through a permeable medium (i.e., the coefficient of permeability).

In Kansas, when permitted designs call for composi te liners, Kansas assures good composite action by requiring intimate and uniform contact between the FML component and the compacted soil component. Kansas supports the last sentence of subsection (a)(2) as written
above. Kansas believes that the introduc tion of the leachate collection system between the two components of the composite liner would defeat the composite action. Kansas requests paragraph (a)(l) of this section be modified to read as follows.

(1) With a composite liner, as defined in paragrap h (a)(2) of this section and a leachate collection system above the upper component of the composite liner. The design shall be in accordance with a design prepared by, or under the direction of, and certified by an independent registered professional engi neer.

Response: While this comment specifically addresses alternative liner design, it includes a reference to an independent registered professional engineer. With regard to this issue, the
commenter is referred to the discussion found in Unit V.C of the preamble that provides the rationale behind the Agency’s decision to modify the qualification s of those individuals that must certify technical demonstration made by the owner or operator of the CCR unit. The Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, may make these certifications.1061



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03444

- 36 

### 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 

### Comment Excerpt Text:
Section 257.72 Rule as proposed Sec. 257.72 Design criteria for new CCR surface impoundments and la teral expansions. (a) New CCR surface impoundments and lateral expansions of CCR landfills or surface impoundments shall be constructed: (1) With a composite liner, as defined in paragraph (a)(2) of this section and a leachate collection system between the upper and lower components of the composite liner. The design of the composite liner and leachate collection system must be prepared by, or under the direction of, and certified by an independent registered, professional engineer. (2) For purposes of this section, composite liner means a system consisting of two components; the upper component must consist of a minimum 30

- mil flexible membrane liner (FML), and the lower component must consist of at least a two

- foot layer of compacted soil with a hydraulic conductivity of no more than lx10

- 7 cm/sec. FML components consisting of high density polyethylene (HDPE) shall be at least 60

- mil thick. The FML component must be installed in direct and uniform contact with the compacted soil component.

In Kansas, when permitted designs call for composite liners, Kansas assures good composite action by requiring intimate and uniform contact between the FML component and the compacted soil component. Kansas supports the last sentence of subsection (a)(2) as written
above. Kansas believes that the introduction of the leachate collection system between the two components of the composite liner would defeat the composite action. Kansas requests paragraph (a)(l) of this section be modified to read as follows.

(1) With a compo site liner, as defined in paragraph (a)(2) of this section and a leachate collection system above the upper component of the composite liner. The design shall be in accordance with a design prepared by, or under the direction of, and certified by an indepe ndent registered professional engineer.

Response: While this comment specifically addresses a different technical standard

, it includes a reference to an independent registered professional engineer. With regard to this issue, the
commenter is referred to the discussion found in Unit V.C of the preamble that provides the rationale behind the Agency’s decision to modify the qualification s of those individuals that must certify technical demonstration made by the owner or operator of the CCR unit. The Age ncy in this rule is requiring that only a qualified professional engineer, as defined in the rule,1062

may make these certifications.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03444

- 38 

### Organization 1 

### : Kansas Department of Health and Environment 

### Commenter 1 : Wi lliam L. Bider Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.4.8.4 4.4.8.5 

### Comment Excerpt Text: Proposed Rule (d) For closure with CCRs in place, a final cover system must be installed at all CCR landfills and surface impoundments that is designed to minimize infiltration and erosion. The final cover system must be designed and constructed to: (1) Have a permeability less than or equal to the permeability o f any bottom liner system or natural subsoils present, or a permeability no greater than lx10

- 5 cm/sec, whichever is less,
and (2) Minimize infiltration through the closed CCR landfill or surface impoundment by the use of an infiltration layer that contain s a minimum IS

- inches of 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 growth,
and (4) Minimize the disruption of the final cover through a design that accommodates settling
and subsidence. (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 certified by an indepen dent registered professional engineer and notification is provided to the state and the EPA Regional Administrator that the alternative cover design has been placed in the operating record and on the owner's or operator's publicly accessible internet site. The alternative final cover design must include: (1) An infiltration layer that achieves an equivalent reduction in infiltration as the infiltration layer specified in paragraphs (d)(I) and (d)(2) of this section, and (2) An erosion layer that provides eq uivalent protection from wind and water erosion as the erosion layer specified in paragraph (d)(3) of this section.

For the geological conditions encountered in Kansas this proposed language could result in final covers needing to be composite caps incorp orating a geomembrane. In several solid waste landfills in Kansas, post

- closure maintenance of such cover systems has been challenging. Such cover systems are not sustainable indefinitely into the future. On the other hand, appropriately designed alternati ve final covers such as capillary barrier covers and evapotranspiration covers are being successfully used in Kansas and such covers are designed to be protective indefinitely into the future with minimal maintenance. EPA technical experts and trainers hav e been1063

supportive of such covers being used for Subtitle D landfill and similar technical basis would apply to CCR landfills. Kansas requests that paragraphs (e)( 1) and (e )(2) of section (e) be deleted and section (e) be modified to read as follows:

(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 certified by an independent registered professional engineer and notification is provided to the state and the EPA Regional Administrator that the alternative cover design has been placed in the operating record and on the owner's or operator's publicly accessible internet site.

Response: While this comment specifically addresses a different technical st andard, it includes a reference to an independent registered professional engineer. With regard to this issue, the commenter is referred to the discussion found in Unit V.C of the preamble that provides the rationale behind the Agency’s decision to modify the qualification s of those individuals that must certify technical demonstration made by the owner or operator of the CCR unit. The Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, may make these cert ifications.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 05751

- 1 

### Organization 1 

### : Savannah River Nuclear Solutions, LLC (SRNS) 

### Commenter 1 : Hal W. Morris Commenter Type: Other Company
Classification: Substantive Comment Category:
Current Task: Examine Context A ssigned/Due:
Other Sections: 2.3.2 

### Comment Excerpt Text: Comment Number l is on a statement in the Supplementary Information, section A, on page 35129 of the June 21, 2010 Federal Register that says "CCRs from non

- utility boilers burning
coal are not included within today's proposed rule ." The language for the proposed subtitle C section 261 .50 (b)(4) says "[This listing does not apply to coal combustion residuals that are:] Generated by facilities outside the electric power sector (i .e ., not inclu ded in NAICS code 22112) ." Similar language is not in the wording of the proposed subpart D section 257.40 (a) Applicability, or in any other sections of the proposed subpart D. If the subtitle D option proposed in the June 21, 2010 Federal Register is en acted with the language in the proposed rule,
CCRs from non

- utility boilers burning coal will be included, contrary to the stated position of the Environmental Protection Agency (EPA) in the preamble . Mr. Alexander Livnat, EPA Office of
Resource Conservat ion and Recovery, was contacted by phone on June 22, 2010 to discuss this point. Mr. Livnat confirmed that the EPA did intend to exclude CCRs from non

- utility boilers burning coal from regulation at this time from both the subtitle C and the subtitle D pro posed rules. SRNS respectfully requests that the EPA revise the language of the proposed section 257.40 to reflect the wording in the proposed section 261 .50 (b)(4) in order to clearly exclude
CCRs from non

- utility boilers burning coal from regulation.1064

R esponse: The Agency acknowledges and appreciates this comment, the commenter is referred to the discussion in Unit VI. Applicability.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06275

- 15 

### Organization 1 

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

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



### Comment Excerpt Text: EPA expressly exempted from regulation under the Subtitle C option CCRs generated by facilities outside the electric power sector (i.e., not included in NAICS code 22112), such as the T.B. Simon Power Plant. EPA, however, apparently overlooked providing a similar express exemption in the Subtitle D opti on.

MSU will be submitting separate comments to EPA to correct this oversight.

Response: The Agency acknowledges and appreciates this comment, the commenter is referred to the discussion in Unit VI. Applicability.



### 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: 7.4.1 

### Comment Excerpt Text: If EPA proceeds with a regulation under Subtitle D, the Department strongly recommends that it include a process whereby EPA acknowledges those states with existing solid waste regulatory programs that are equiv alent to the minimum national criteria in the regulation, and authorizes those states to implement and enforce the federal regulation. Provisions should also be added that clearly state that the federal regulation is not a substitute for existing state reg ulation 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.1065

Resp onse: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06280

- 19 

### 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: 10.6.2 

### Comment Excerpt Text: The pr oposal for Subtitle C contains beneficial use language in 261.4(b)(4)(i). Why is similar language not included in the Subtitle D proposal? Inclusion of this language in the Subtitle D proposed rule will more effectively promote the beneficial use of CCRs.

Response: The commenter is referred to Unit IV of t he preamble for a discussion o f EPA’s 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

- 09282

- 13 

### Organization 1 

### : North Carolina Department of Environment and Natural Resources 

### Commenter 1 : Dexter R. Matthews Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.4.5.1.1 

### Comment Excerpt Text: Note errors in the following proposed regulations: §257.71 Design Criteria for Existing CCR Surface Impoundments (a)(1) and §257.72 Design Criteria for New CCR Surface Imp oundments and Lateral Expansions (a)(1) should read: “With a composite liner as defined in paragraph (a)(2) of this section and a leachate collection
system between above the upper and lower components component of the composite liner. The design of the composite liner and leachate collection system must be prepared by, or under the direction of, and certified by an independent registered, professional engineer.” Response: While this comment addresses a differen t technical requirement of the proposed rule, the commenter is referred to the discussion found in Unit V.C of the preamble provid ing the rationale behind the Agency’s decision to modify the qualification s of those individuals that1066

must certify technical d emonstration made by the owner or operator of the CCR unit. The Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, may make these certifications.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09284

- 20 

### 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: 4.4.4.6 

### Comment Excerpt T ext: Section 257.60 Proposed Rule
Sec. 257.60 Placement above the natural water table. (a) New CCR landfills and new CCR surface impoundments and lateral expansions must be constructed with a base that is located a minimum of two feet above the upper limit of the natural
water table. (b) For purposes of this section, natural water table means the natural level at which water stands in a shallow well open along its length and penetrating the surficial deposits just deeply enough to encounter standing water a t the bottom. This level is uninfluenced by groundwater pumping or other engineered activities.

This proposed language is confusing. We believe that the maximum seasonal high water table is a threshold that can be measured through indicators such as soil morphology or field measurements and the use of the maximum seasonal high water table is an appropriate measure of the upper limit of the natural water table. We request this section to be modified to read as
follows:

Sec. 257.40

- include a new term and d efinition

- "Maximum seasonal water table" means the highest level of a saturated zone (the apparent or perched water table) over a continuous period of more than two weeks in most years, but not a permanent water table.

Sec. 257.60 Placement above the upp ermost aquifer. New CCR landfills and new CCR surface impoundments and lateral expansions must be
constructed with a base that is located a minimum of two feet above the maximum seasonal water table as defined in proposed regulation 257.40 and certified by a qualified groundwater scientist, professional geologist, or professional engineer.

Response: While this comment addresses a different technical requirement of the proposed rule, the commenter is referred to the discussion found in Unit V.C of the prea mble provid ing the rationale behind the Agency’s decision to modify the qualification s of those individuals that must certify technical demonstration made by the owner or operator of the CCR unit. The1067

Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, may make these certifications.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09284

- 21 

### Organization 1 

### : Virginia Department of Environmental Quality 

### Commenter 1 : Jeffery A. Steers
Com menter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.4.5.1.1 

### Comment Excerpt Text: Section 257.70 Proposed Rule Sec. 257.70 Design criteria for new CCR landfills and lateral expansions. (a) New CCR landfills and lateral expansions of CCR landfills shall be constructed: (1) With a composite liner, as defined in paragraph (a)(2) of this section and a leachate collection system that is designed and constructed to maintain less than a 30

- cm depth of leachate over the liner. The design of the composite liner and leachate collection system must be prepared by, or under the direction of, and certified by an independent registered, professional engineer. (2) For purposes of thi s section, composite liner means a system consisting of two components; the upper component must consist of a minimum 30

- mil flexible membrane liner (FML), and the lower component must consist of at least a two

- foot layer of compacted soil with a hydrauli c conductivity of no more than 1x10

- 7 cm/sec. FML components consisting of high density polyethylene (HDPE) shall be at least 60

- mil thick. The FML component must be installed in direct and uniform contact with the compacted soil component. (3) For purpose of this section, hydraulic conductivity means the rate at which water can move through a permeable medium. (i.e., the coefficient of permeability). (b) [Reserved]

This proposed language is restrictive and would not allow designs which can be equally prot ective of groundwater and surface water. Other alternate liners have been used successfully throughout the country and provisions to allow alternate liners need to be incorporated. A composite Subtitle D liner is clearly not needed to protect groundwater o r surface water in all geologic and climatic scenarios. States should have the flexibility to review and approve alternative liner designs that will provide adequate protection as allowed under part 258 for sanitary landfills. Therefore, we request that pa ragraph (a)(1) of this section be modified to allow alternate designs as follows:

1) With a composite liner, as defined in paragraph (a) (2) of this section and a leachate collection system that is designed and constructed to maintain less than a 30

- cm de pth of leachate over the
liner or an alternate design approved by the Director of an approved State that demonstrates that leachate will be contained or managed in a manner that is protective of groundwater and surface

water . The design of the composite li ner and leachate collection system must be prepared by, or under the direction of, and certified by an independent registered, professional engineer.1068

(Proposed change underlined)

Response: While this comment addresses a different technical requirement of the proposed rule, the commenter is referred to the discussion found in Unit V.C of the preamble provid ing the rationale behind the Agency’s decision to modify the qualification s of those individuals that must certify technical demonstration made by the o wner or operator of the CCR unit. The Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, may make these certifications.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09284

- 23 

### 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: 4.4.5.1 

### Comment Excerpt Text: Section 257.72 Proposed Rule Sec. 257.72 Design criteria for new CCR surface impoundments and lateral expansions. (a) New CCR surface impoundments and lateral expansions of CCR landfills or surface impoundments shall be constructed: (1) With a composite liner, as defined in paragraph (a) (2) of this section and a leachate collection system between the upper and lower components of the composite liner. The design of the composite liner and leachate collection system must be prepared by, or under the direction of, and certified by an in dependent registered, professional engineer. (2) For purposes of this section, composite liner means a system consisting of two components; the upper component must consist of a minimum 30

- mil flexible membrane liner (FML), and the lower component must con sist of at least a two

- foot layer of compacted soil with a hydraulic conductivity of no more than 1x10

- 7 cm/sec. FML components consisting of high density polyethylene (HDPE) shall be at least 60

- mil thick. The FML component must be installed in
direct an d uniform contact with the compacted soil component.

When permitted designs call for composite liners, we assure good composite action by requiring intimate and uniform contact between the FML component and the compacted soil component.
We believe that th e introduction of the leachate collection system between the two components of the composite liner would defeat the composite action. Virginia DEQ requests paragraph (a) (1) of this section be modified to read as follows (changes suggested are underlined):

.

(1) With a composite liner, as defined in paragraph (a) (2) of this section and a leachate collection system above the upper component of the composite liner. The design shall be in accordance with a design prepared by, or under the direction of, a regi stered engineer and shall be certified by an independent registered professional engineer.1069

Response: While this comment addresses a different technical requirement of the proposed rule, the commenter is referred to the discussion found in Unit V.C of the preamble provid ing the rationale behind the Agency’s decision to modify the qualification s of those individuals that must certify technical demonstration made by the owner or operator of the CCR unit. The Agency in this rule is requiring that only a qual ified professional engineer, as defined in the rule, may make these certifications.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 35 

### Organization 1 

### : Arizona Department of Environmental Quality (ADEQ) 

### Commenter 1 : Benjamin H. Grumbles Commenter Type: State G overnment Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.4.5.1.1 7.1.1.1 4.2.2 

### Comment Excerpt Text: Pg. 35243, Section 257.70 Design criteria for new CCR landfills and lateral expansions: States must have the flexibility to review and approve of alternative liner designs that will provide adequate protection. Arizona’s Aquifer Protection Permit Program requires the use of a Best Available Demonstrated Control Technology criteria and process in developing the design for a facility which allows for the use of site

- specific design elements. Arizona requests that paragraph (a)(1) of this section be modified to allow alternate designs approved under state programs as follows (modification in ital ics):

(1) With a composite liner, as defined in paragraph (a)(2) of this section and a leachate collection system that is designed and constructed to maintain less than a 30

- cm depth of leachate over the
liner or an alternate design approved by the Direct or of an approved state that demonstrates that leachate will be contained or managed in a manner that is protective of groundwater and surface water. The design of the composite liner and leachate collection system or alternate design must be prepared by, or under the direction of, and certified by an independent, registered, professional engineer.

Response: While this comment addresses a different technical requirement of the proposed rule, the commenter is referred to the discussion found in Unit V.C of the preamble provid ing the rationale behind the Agency’s decision to modify the qualification s of those individuals that must certify technical demonstration made by the owner or operator of the CCR unit. The Agency in this rule is requiring that only a q ualified professional engineer, as defined in the rule, may make these certifications.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 36 

### Organization 1 

### : Arizona Department of Environmental Quality (ADEQ) 

### Commenter 1 : Benjamin H. Grumbles1070

Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.4.5.1.1 7.1.2.1 4.2.2 

### Comment Excerpt Text: Pg. 35243, Section 257.71 Design criteria for existing CCR surface impoundments: St ates must have the flexibility to review and approve of alternative liner designs that will provide adequate protection. Arizona’s Aquifer Protection Permit Program requires the use of a Best Available Demonstrated Control Technology criteria and process i n developing the design for a facility
which allows for the use of site

- specific design elements. Arizona requests that paragraph (a)(1) of this section be modified as follows (modification in italics):

(1) With a composite liner, as defined in paragraph (a)(2) of this section as a leachate collection system above the upper components of the composite liner or an alternate design, approved by the Director of an approved state, that prevents migration of wastes out of the impoundment to subsurface soils, gr oundwater, or surface water. The design shall be in accordance with a design prepared by, or under the direction of, and certified by and independent registered professional engineer.

Response: While this comment addresses a different technical requirement of the proposed rule, the commenter is referred to the discussion found in Unit V.C of the preamble provid ing the rationale behind the Agency’s decision to modify the qualification s of those in dividuals that must certify technical demonstration made by the owner or operator of the CCR unit. The Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, may make these certifications.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 37 

### 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: 4.4.5.1 

### Comment Excerpt Text: Pg. 35244, Section 257.71 Design criteria for existing CCR surface impoundments: If an existing surface impoundment has been demonstrated to meet Arizona’s Best Available Demonstrated Control Technology in its design and ongoing monitoring is in place, then it is not necessary to dredge and re

- line or close the impoundment. Arizona requests that paragraph (g) of this section
be deleted.

Response: The Agency acknowledges and appreciates the comment, the commen ter is referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a1071

discussion relating to the decision to regulate CCR under subtit le D of RCRA. In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 38 

### 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: 4.4.5.1.1 7.1.2.1 

### Comment Excerpt Text: Pg. 35244, Section 257.72 Design criteria for new CCR surface imp oundments and lateral expansions: Arizona’s Aquifer Protection Permit Program requires the use of a Best Available Demonstrated Control Technology criteria and process in developing the design for a facility
which allows for the use of site

- specific design elements. Arizona requests that paragraph (a)(1) of this section be modified as follows (modification in italics):

(1) With a composite liner, as defined in paragraph (a)(2) of this section as a leachate collection system above the upper comonents of the composite liner or an alternate design, approved by the Director of an approved state, that prevents migration of wastes out of the impoundment to subsurface soils, groundwater, or surface water. The design of the composite liner and leachate
collection s ystem or alternate design must be prepared by, or under the direction of, and certified by and independent registered professional engineer.

Response: While this comment addresses a different technical requirement of the proposed rule, the commenter is referred to the discussion found in Unit V.C of the preamble provid ing the rationale behind the Agency’s decision to modify the qualification s of those individuals that must certify technical demonstration made by the owner or operator of the CCR unit. Th e Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, may make these certifications.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 41 

### Organization 1 

### : Arizona Department of Environmental Quality (ADEQ) 

### Com menter 1 : Benjamin H. Grumbles Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.4.8.4 4.2.2 7.1 

### Comment Excerpt Text: Pg. 35252, Section 257.100 Closure criteria: Arizona requests that alternative final cover designs1072

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: While thi s comment addresses a different technical requirement of the proposed rule, the commenter is referred to the discussion found in Unit V.C of the preamble provid ing the rationale behind the Agency’s decision to modify the qualification s of those individuals that must certify technical demonstration made by the owner or operator of the CCR unit. The Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, may make these certifications.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 43 

### 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:
Oth er Sections: 4.4.8.9 4.2.2 

### Comment Excerpt Text: Pg. 35253, Section 257.101 Post

- closure care requirements: The Director of an approved state must have the ability to review and approve any request for reduction in the 30

- year post

- closure care period. Ar izona requests that paragraph (b)(1) be modified as follows (modification in italics):

(1) Decreased if the owner or operator of the CCR landfill or surface impoundment demonstrates that the reduced period is sufficient to protect human health and the env ironment and this demonstration is certified by an independent registered professional engineer and approved by the Director of an approved state. Upon approval, the demonstration shall be placed in the operating record and on the owner’s or operator’s pub licly accessible Internet site.

Response: While this comment addresses a different technical requirement of the proposed rule, the commenter is referred to the discussion found in Unit V.C of the preamble provid ing the rationale behind the Agency’s decision to modify the qualification s of those individuals that must certify technical demonstration made by the owner or operator of the CCR unit. The Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, may make these certifications.1073



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 47 

### 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: 4.4.3 

### Comment Excerpt Text: 3. Pg. 35241, Independent Registered Professional Engineer or Hydrologist: Suggest including Registered Geologist. Also suggest adding that the professional must be certified or registered in the state where the facility exists, in the field where he/she is claiming expertise, provided the state has a registration program for that particular field.

Response: The commente r is referred to the discussion found in Unit V.C of the preamble provid ing the rationale behind the Agency’s decision to modify the qualification s of those individuals that must certify technical demonstration made by the owner or operator of the

CCR unit

. The Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, may make these certifications.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 50 

### 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: 4.4.4 

### Comment Excerpt Text: 6. Pg. 35242, Section 257.62: Suggest changing language so that it is clear that the demonstration must be to the satisfaction of the State. This is applicable throughout the
document. Response: The Agency acknowledges and appreciates the comment, the commenter is referred to Units V and IX of the pre amble for discussions as to how this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the p reamble discusses EPA’s statutory authorities under a subtitle D rule. In response to this specific requirement suggested by the commenter, the Agency has no authority to require such a statement be included in the regulatory language.1074



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 54 

### 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/D ue: Other Sections: 4.4.5.1 

### Comment Excerpt Text: 10. Pg. 35244, Section 257.71: Add Instrumentation and Monitoring Plan. Add Data Report of all monitoring along with interpretation by a qualified engineer.

Response: While this comment addresses a different technical requirement of the proposed rule, the commenter is referred to the discussion found in Unit V.C of the preamble provid ing the rationale behind the Agency’s decision to modify the qualification s of those in dividuals that must certify technical demonstration made by the owner or operator of the CCR unit. The Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, may make these certifications.



### Comment Numbe r: EPA

- HQ

- RCRA

- 2009

- 0640

- 09423

- 5 

### Organization 1 

### : American Forest and Paper Association (AF&PA) 

### Commenter 1 : Paul Noe Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 2.3.2 3.9 4.4.3 

### Comment Excerpt Text: EPA Must Exclude CCRs from Pulp and Paper Mill Coal Combustion under the Definition of
CCR

Within both the Subtitle C proposal (at Section 264.1301) and Subtitle D proposal (at Section 257.40(b)), EPA must revise its definitions of “Coal Combustion Residuals (CCRs)” to exclude

non

- electric utility residuals. The current definitions do not distinguish between electric utility
and non

- electric utility coal combustion residuals. However, the entire preamble of the rule f or both the Subtitle C and Subtitle D proposals states that the proposals

– regardless of which is
chosen

-- are directed towards electric utility residuals only. Therefore, the definitions must be revised to address only those residuals meant to be regula ted by this rulemaking.1075

Response : The commenter is referred to the Applicability section Unit VI of the proposed rule. This section describes those facilities that are subject to this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09713

- 13 

### Organization 1 

### : Indianapolis Power & Light Company (IPL) 

### Commenter 1 : Dana G. Meier Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.9 

### Comment Excerpt Text:

EPA's stated intent to exclude placement of CCRs in coal mines from the final rule is contradicted by EPA's definitions of "Minefill" and "CCR Landfill". The first page of the preamble to the proposed rule explicitly states: "EPA is also not proposing to address the

p lacement of CCRs in mines, or non

- minefill uses of CCRs at coal mine sites in this action." But, then EPA defines the term "minefill" as a "project involving the placement of CCRs in coal mine voids for use as fill, grouting, subsidence control, capping, m ine sealing, and treating acid mine drainage, whether for purposes of disposal or for beneficial use."

There are several concerns with this defintion. First, it does not specify whether it applies to both surface and underground mines. Arguably, EPA's us e of the phrase "in coal mine voids" might imply that the term is not applicable to surface mine land reclamation and is limited to underground mines. Second, by delineating only certain uses, the definition contradicts the
broader exclusion EPA characteri zes in the preamble as including both minefill and non

- mine fill uses with no differentiation between the type of mining operation. Finally, the phrase "whether for purposes of disposal or for beneficial use" creates additional confusion by suggesting that some of the uses listed are considered disposal while others are considered beneficial use.

As written, EPA's definition appears to contradict its stated intention that the rulemaking does not "address the placement of CCRs in mines, or non

- minefill use s of CCRs at coal mine sites in this action." 75 Fed. Reg. at 35,123 (emphasis added). IPL recommends that EPA eliminate the confusion by eliminating the definition of "minefill," the references to "minefilling," "minefilling operation," and "underground m ine" from the final rule. Instead, IPL believes EPA should use the term mine placement as referred to by OSM or mine reclamation and revise the regulatory text to make it clear that all uses of CCRs at surface and underground mining and reclamation operati ons are not covered by the final rule.

The ambiguity and contradiction with EPA's stated intention that OSM develop regulations for
coal mines also extend to EPA's defintions of "CCR landfill" and "Beneficial use of Coal Combustion Products (CCF's)." Bot h definitions reference "large scale fill" operations or projects, creating considerable confusion and uncertainty over the application of the proposed rule to surface coal mining and reclamation operations. In particular, IPL is concerned that these
defin itions might be construed to mean that placement of CCRs in SMCRA

- authorized reclamation permits would be improperly subject to regulation under RCRA as "CCR landfill",1076

contrary EPA's stated intention to allow OSM to take the lead on regulating uses of CCR s at coal
mines in accordance with the NRC's recommendations.

IPL has multiple reasons for questioning EPA's definition. First, EPA defines the term "CCR landfill" by only expressly excluding "underground mine[s]." At the same time, EPA's regulatory
defi nition of "CCR landfill" includes "large scale fill operations" as a disposal facility covered by the rule. Second, EPA defines "Beneficial use of Coal Combustion Products (CCPs)" as expressly excluding the use of CCRs in "large scale fill projects, such a s for restructuring the landscape." Importantly, EPA's use of the terms "large scale fill operations" and "large scale fill projects" are not specifically defined in the preamble or the proposed regulations. Without something more concrete, IPL cannot dete rmine with confidence the extent to which this term could be interpreted to apply to surface coal mining operations.

It is imperative that EPA clarify that the term "CCR landfill" in fact does not include the use of CCRs at surface coal mining and reclam ation operations. It is also essential that EPA exclude surface coal mining and reclamation operations from the term "large scale fill operation." This clarification can be accomplished by adopting the revisions suggested above in removing
references to "m inefill," "minefilling operation," and "underground mine," which may suggest that surface coal mining and reclamation operations are not excluded from regulation as disposal facilities, and replace that language with an explicit statement that all surface and underground coal mining and reclamation operations are exempt from EPA's regulation.

In fact, given that the beneficial uses of CCRs in the proposals exclude the use of CCRs that are used in large

- scale fill projects, including those for restructurin g the landscape, any use of CCRs for surface or open pit mines may be considered an improper use subjecting the site to regulation as a CCR landfill . Id. at 35254 (proposed 40 C.F.R. 261.4(b)(4)(i)). Such a result would be
inconsistent with EPA's statemen t that CCR mine placement operations will be the subject matter of a later rulemaking by OSM. Therefore, IPL strongly encourages EPA to provide regulatory certainty to CCRs used in mine placement by explicitly exempting CCRs used at coal mine sites
from re gulation under the proposal, including the use of CCRs in surface mine placement. As EPA correctly acknowledges in the preamble, the Agency should defer to OSM for development of regulations for these activities. Id. at 35165.



### Comment Number: EPA

- HQ

- RCR A

- 2009

- 0640

- 09885

- 28 

### Organization 1 

### : Progress Energy, Inc. 

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



### Comment Excerpt Text:

There is an error in the proposed leachate collection system requirements for CCR surface impoundments1077

Progress Energy believes that EPA has inadvertently included an error in the regulatory text requiring the installation of a leachate collection system between the upper and lower components of the composite liner system for existing CCR surface impoundments and for new impoundments. Specifically, EPA proposes in the case of existing CCR impoundments that, no later than five years after the effective date of the Subtitle D regulations, CCR impoundments shall be constructed with a composite liner with “a leachate collection system between the upper and lower components of the composite liner.” EPA proposes a similar condition for new impoundments (and lateral extensions to existing impoundments), directing that the leachate collection system shall be installed “between the upper and lower components of the composite liner.” The Company believes that this is an error, given that the composite liner systems that
CCR surface im poundments are required to employ are required to have the upper flexible membrane liner (FML) component to be “installed in direct and uniform contact with the compacted soil component.” In other words, given that both components of the liner system must be in direct contact with one another, there is no way that a leachate collection system can be installed between these two components.

Even in the case of new CCR landfills, the proposed regulatory text makes clear that the leachate collection system is to be installed over the liner. Therefore, EPA should eliminate the proposed requirement directing that leachate collection systems in the case of surface impoundments be between the upper and lower components of the liner system when these components must be “in
direct and uniform contact” with one another



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09951

- 27 

### Organization 1 

### : Full Circle Solutions, Incorporated 

### Commenter 1 : Robert J. Waldrop Commenter Type: Beneficial User
Classification: Substantive Comment Catego ry: Current Task: Examine Context Assigned/Due:
Other Sections: 4.4.3

Independent registered professional engineer or hydrologist

- As stated in our comments concerning RCRA Subtitle D Regulations, we do not believe a registered professional engineer

o r hydrologist needs to be someone not employed by the owner or operator. This definition should be changed as follows:

Independent registered professional engineer or hydrologist means a scientist or engineer who has received a baccalaureate or postgradua te degree in the natural sciences or engineering and has sufficient training and experience in groundwater hydrology and related fields as may be demonstrated by state registration, professional certifications, or completion of accredited university progra ms that enable that individual to make sound professional judgments regarding the technical information for which a certification under this subpart is necessary.1078

Response: While this comment addresses a different technical requirement of the proposed rule, the commenter is referred to the discussion found in Unit V.C of the preamble provid ing the rationale behind the Agency’s decision to modify the qualification s of those in dividuals that must certify technical demonstration made by the owner or operator of the CCR unit. The Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, may make these certifications.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09996

- 7



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10017

- 14 

### Organization 1 

### : Salt River Project (SRP) 

### Commenter 1 : Daniel J. Casiraro Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 4.4.7.2 4.4.7.5.2 

### Comment Excerpt Text: Under a Subtitle D program, state agencies should be allowed to establish groundwater monitoring parameters based on site

- specific conditions due to the high vari ability of groundwater and geology across the United States. Many states, including Arizona, already have a robust groundwater protection program in

- place (e.g., ADEQ's Aquifer Protection Permit Program) to fully protect regional groundwater that may becom e future drinking water sources. An environmental professional or a professional engineer, hydrologist, or registered geologist should be allowed to establish an alternate list of parameters as deemed appropriate based on
site

- specific characteristics. SRP recommends that EPA add language in the Subtitle D groundwater monitoring rules allowing the flexibility for establishing site specific parameters based on review by a state registered professional.

Response: While this comment addresses a different te chnical requirement of the proposed rule, the commenter is referred to the discussion found in Unit V.C of the preamble provid ing the rationale behind the Agency’s decision to modify the qualification s of those individuals that must certify technical demon stration made by the owner or operator of the CCR unit. The Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, may make these certifications.

Section 4.8

- Other Total Number of Submissions: 10
Total Number of Comments: 191079



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 25 

### Organization 1 

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

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



### Comment Excerpt Text: The department believes that CCR should be regulated consistently in the United States as a solid waste. It should be regulated and managed to increase the rate of its reuse/recycling, reducing the use of our natural resources and lowering the rate of CCR disposal. The success in Europe of reusing/recycling CCR material, approximately 94 percent, is a worthy goal.

Response: The commenter is referred to Unit IV of t he preamble for a dis cussion o f EPA’s 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

- 06398

- 6 

### Organization 1 

### : Duk e Energy 

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



### Comment Excerpt Text: EPA has readily acknowledged that it can develop non

- hazardous waste rules for CCR under RCRA’s Subtitle D framework that will be fully protective of human health and the environment. [Footnote 5: See the discussions on pages 7 and page 42, infra.]. In addition, the development of Subtitle D CCR regulations is the app ropriate outgrowth of EPA’s two Reports to Congress and two final Regulatory Determinations under the Bevill Amendment declaring that CCR does not warrant hazardous waste regulation under RCRA Subtitle C.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 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 4.2.3.1 4.2.3.2 4.2.6 7.4.2 10.5.2.31080



### 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 soun d 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 concept that a licensed professional engineer’s judgment will take care of the details in terms of proper CCR handling. It makes much more sense for EPA to confer with the utility industry and their service providers, like ourselves, to identify specific f undamental 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, wate r 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 cont rol 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 re alize 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 nee ds 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 sta ndards 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 Enviro nmental Protection Agency, Title 35, Subtitle B, Subchapter *, Part 816 (quality control procedures for CCR mixtures).] and experts in affected community and environmental groups. This group could engage in the kind of discussion that would allow EPA to re

- propose promptly a fully developed
standard.

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



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 21 

### Organization 1 

### : Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC)1081



### 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: 10.3.3 

### Comment Excerpt Text: Guidance is Needed. For a rule of this complexity an d scope, it is essential that EPA provide guidance for implementation when the final rule is issued. Affected facilities and state agencies will necessarily rely on EPA’s guidance for the successful and consistent implementation of federal CCR regulations.

Response : The Agency acknowledges and appreciates this comment. The commenter is referred to the preamble supporting this rule for additional discussion as well as the EPA website supporting this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 40 

### 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: 3.11 3.5.2.2 3.4.1.1.1 

### Comment Excerpt Text: The proposed rules engender a significant need for guidance, particularly if the RCRA Subtitle C alternative is chosen. Operators, EPA Regional staff, and State agency staff will not automatically be aware of the interpretations in the Preamble and could e asily come up with differing decisions. We suggest that the rule not be finalized until guidance is ready to be issued at the same. The guidance needs to incorporate much of the discussion in the Preamble that interprets the rule. Examples follow of items that need explanation if rules do not specifically
address them.

Two comments of note on p. 35173: Manifesting is required for transport to off

- site disposal, but not for disposal sites located on the same property as the combustor generating the CCR. No explanation is provided on issues such as whether property owned by utilities on both sides of public roads are considered the same property for CCR transporter purposed, thus not requiring manifesting, or separate properties, thus requiring manifesting f or the sole reason of hauling vehicles crossing a public road. This situation can easily arise if a utility expands powerplant facilities to fill up its original parcel and purchases additional property for landfilling purposes.

For beneficial use, the p reamble states that the Bevill Amendment exemption applies to CCR used beneficially, so that RCRA Subtitle C rules do not apply from point of generation throughout the reuse process. When a product using CCR reaches the end of useful life, the product beco mes a waste. Whether or not the waste is subject to RCRA Sub C or D will not be1082

because of the CCR content but on whether the waste passes or fails the hazardous waste characteristics (TCLP, etc.). This appears to answer concerns about whether products or wastes resulting from products would automatically be subject to RCRA Sub C simply because CCR provided some of the ingredients.

Comment on p. 35175: Only new CCR landfills would be required to meet the minimum technology requirements of liners and leach ate collection systems. Existing landfills would be allowed to continue filling without having to be retrofitted with liners and leachate collection systems. Groundwater monitoring, corrective action and other requirements in accordance with
the rule would be required at existing CCR landfills that continue to receive CCR wastes. It should be clearly stated what design requirements that lateral or vertical expansions of such landfills would have to meet, and what are the other requirements in the rule that an existing
CCR landfill would have to meet.

Response : The Agency acknowledges and appreciates the comment. Under this final rule the Agency is regulating the disposal of CCR in landfills and surface impoundment under subtitle D

or RCRA. The reader is referred to the Federal Register notice containing this rule for a comprehensive discussion of the requirements and rationale for developing the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06533

- 7 

### Organization 1 

### : Empire District Electric Company 

### Comment er 1 : George G. Thullesen Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.11 

### Comment Excerpt Text: Empire District currently sluices ash from our coal

- fired units at the Riverton Generating Station to a permitted landfill. We are investigating the cost of converting these units to dry handling for CCR removal. A key consideration for this conversion is the final classification of the existing
landfi ll. Will a permitted landfill at which CCR are currently placed by sluicing be considered a surface impoundment under the proposed regulations if the owner stops sluicing and begins dewatering the landfill prior to the effective date of the regulations?

R esponse: The commenters is referred to Volume 11 of the Response to Comment document
for a discussion of this comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06533

- 8 

### Organization 1 

### : Empire District Electric Company 

### Commenter 1 : George G. Thullesen
Commenter Type: Electric Utility Company
Classification: Substantive1083

Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.11 

### Comment Excerpt Text: EPA did not directly address situations at existing and abandoned landfills and surface impoundments where CCR may be in direct contact with the natural ground water table. Will removal of CCR be required in cases where the base of an existing or abandoned surface impoundment or landfill is shown to be below the natural water table? Will remo val be required even if the monitoring plan data indicates that no contamination of the natural groundwater has or is occurring? Under the subtitle D or D prime alternative, we believe that the removal of existing waste, closure with the waste in place and /or continued operation of the existing facility should be governed by the facilities monitoring program.

Response: The commenter is referred to Volume 4 of the Response to Comment document regarding location criteria.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06533

- 9 

### Organization 1 

### : Empire District Electric Company 

### Commenter 1 : George G. Thullesen Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections : 3.11 

### Comment Excerpt Text: Empire District would appreciate EPA’s direct comments to the following questions. Will removal of CCR be required for closure of an existing surface impoundment regardless of whether or not the base of the impoundment is below the natural water table? If removal is not required, what specific criteria will be required for the closure of surface impoundments with the CCR in place?

Response: The commenter is referred to Volume 4 of the Response to Comment

d ocument support ing this rule for a discussion of this comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 34 

### 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: 10.3.3 3.11 

### Comment Excerpt Text: General question: does the proposed rule contemplate the excavation of materials previously disposed of in a surface impoundment or landfill for repurposing as CCP? If so, would the1084

materials still be regulated as waste? Or would the material cease to be regulated at the point of
excavation?

Response : The reader is referred to Unit V of the preamble for the final rule as well as volume
12 of the Response to Comment Document supporting this rul e making effort.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09765

- 14 

### Organization 1 

### : Electric Power Research Institute (EPRI) 

### Commenter 1 : Ken Ladwig Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.11 

### Comment Excerpt Text: The EPRI comments do not endorse any particular regulatory option put forth by US EPA in the June 21 proposal. The purpose of these comments is to provide technical information that can be used by US EPA and others to develop regulations based on the best data available.

Response: T he Agency acknowledges and appreciates this comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09765

- 15 

### Organization 1 

### : Electric Power Research Institute (EPRI) 

### Commenter 1 : Ken Ladwig Commenter Type: Trade Association
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 3.11 

### Comment Excerpt Text:

The EPRI comments do not endorse any particular regulatory option put forth by US EPA in the June 21 proposal. The purpose of these comments is to provide technical information that can be used by US EPA and others to develop sound regulations based on the best te chnical information
available.

Response: T he Agency acknowledges and appreciates this comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10495

- 59 

### Organization 1 

### : Earthjustice, et. al. 

### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group1085

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



### Comment Excerpt Text: For the reasons discussed above, we do not believe EPA has the discretion under RCRA to implement a subtitle D option. However, we comment on specific major aspects of the subtitle D scheme below. We also submit comments to the record on particular aspects of the proposed subtitle D (and subtitle C) schemes in Appendices I, M, and N.

Response: T he Agency acknowledges and appreciates this comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10495

- 62 

### 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. Subtitle D Regulations Cannot Establish “Cradle to Grave” Requirements

EPA’s proposed subtitle D scheme does not establish “cradle to grave” requirements. The proposed criteria does not address the generation, storage, treatment or transport of coal ash prior

to disposal. The handling of ash prior to disposal, however, can and does harm human health and the environment. In sections III.C.2.e, supra, these comments discuss the risk posed by fugitive dust that often occurs during storage and transport of coal ash. F ailure to address these risks to air, groundwater, soil, and surface water from ash handling fails to establish a reasonable probability that there will be no adverse impacts on heath or the environment.

Response: T he Agency acknowledges and appreciates this comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10495

- 64 

### Organization 1 

### : Earthjustice, et. al. 

### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Secti ons: 4.4.7.10 

### Comment Excerpt Text:1 086

5. Subtitle D Standards Cannot Address Facility

- Wide Pollution And Historic Dumping And Therefore Cannot Establish A Reasonable Probability That There Will Be No Adverse Impacts On Human Health Or The Environment.

The absence of facility

- wide corrective action standards is a fatal flaw in EPA’s proposed subtitle D regulations. Given the magnitude of historic dumping on power plant properties, it is a gross oversight not to require an investigation of all onsite disposal facilities, both operating and retired. Section III.C.2.h. supra, discusses the substantial risks posed by retired dumps. The absence of a requirement in the subtitle D scheme to address this risk fails to establish a reasonable probability that there wil l be no adverse impact on heath or the environment.

Response: T he Agency acknowledges and appreciates this comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10495

- 65 

### 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: 6. Subtitle D Standards Cannot Require Utilities to Identify Current and Past Disposal
Units And Therefore Cannot Establish A Reasonable Probability That There Will Be No Adverse Impacts On Human Health Or The Environment.

With the listing of coal ash as a hazardous waste, utilities and landfill owners must comply with section 103(c) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). [Footnote 359: 42 U.S.C. §9603(c).]. Section 103(c) requires coal ash generators, past or present owners of disposal facilities, and some transporters to notify the EPA of the
existence of facilities where coal ash has been disposed, specifying the amount to be found there, and any known, suspected, or likely release from the site. Given the dearth of data on where and
how billions of tons of coal ash have been disposed over the last six decades, it is essential for the protection of health and the environment to collect such information. In a 1993 Department of Energy report, the Department found that there are 759 retired coal ash disposal units with a cumulative total of 1 billion tons of waste, but no information is available on where those units are located or the conditions of the disposal. [Footnote 360: ICF Resource, Incorporated, Coal Combustion Waste Management Study, prepared for U.S. Department of Energy (February 1993), Docket ID No.: EPA

- HQ

- 2006

- 0796.]. Identification of hundreds of historic dump sites will undoubtedly help to safeguard water supplies, especially since most older dumps are unlined and thus more likely to release harmful contaminants. Without this information, subtitle D fails
to establish a reasonable probability that there will be no adverse impact on health or the
environment.1087

Response: The Agency is promulgating a final rule under subtitle D of RCRA. As part of this rulemaking effort, the Agency has determined that inactive CCR surfa ce impoundments , as defined in the rule, are subject to the requirements of the rule. The reader is referred to the applicability section in Unit VI of the rule for a discussion of inactive units.



### Comment Number: TRANS

- KNX

- 0065

- 1 

### Organization 1 

### : Southern Alliance for Clean Energy (spoke as employee and citizen)


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



### Comment Excerpt Text:

I work at the Southern Alliance for Clean Energy. I'm also a graduate of the University of Tennessee civil engineering department. In college, I studied concrete strength. We had a lab where we would make our own concrete for testing, mixing aggregate with cement and w ater and sometimes adding fly ash. The fly ash came as a dry dust. We scooped it out of a bag. You wouldn't want to breathe in the particles, but the

ash was well contained. This dry, treated and bagged version of coal ash is more similar to a household c hemical waste that is suggested in EPA Subtitle D. However, this is not the type of coal ash we're talking about today. In fact, under Subtitle C, coal ash that is recycled for other uses such as concrete is exempt from the regulations.

EPA Response: T he Agency acknowledges and appreciates the comment. The reader is referred to Units IV and VI of today’s rule for a discussion on beneficial use.