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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 14

State Authorities, Programs and Regulations 

December 2014
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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 national 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 

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

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

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

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

EPA-HQ-RCRA-2009-0640, Docket ID No. EPA-HQ-RCRA-2011-0392, and Docket ID No.

EPA-HQ-RCRA-2012-0028. All documents in these dockets are available at 

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

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

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

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

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

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

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

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

(202) 566–1744, and the telephone number for the OSWER Docket is 202–566–0276.
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After reviewing all the comments and additional data received, EPA is promulgating a 

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

addresses the risks from structural failures of CCR surface impoundments, groundwater 

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

and fugitive dust emissions. 

The Agency has developed seventeen volumes of summarizing comments on major 

topics covered in the proposed rule (see table 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 proposed 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) 

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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 

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Operating Criteria: Endangered species/Surface water/Inspections/Run-on 

Run-off 

8 Operating Criteria: Air Criteria 

9 Groundwater and Corrective Action 

10 Closure and Post-Closure Care 

11 Additional Comments including Overfills/ Harmonization with ELG. 

12 Beneficial Use 
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Volume Topic

13 Risk Assessment 

14 State Authorities, Programs and Regulations 

15 Compendium of Damage Cases 

16 Regulatory Impact Analysis (RIA) 

17 EPA’s Assessment Program 

CommentWorks® Issue Report

Initiative: Coal Combustion Residuals Proposed Rule 

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Section 7.1 - State Regulations or Performance Standards: EPA solicits detailed info on 

state regulatory authorities and/or regulatory structure for CCRs; particularly 

requirements applicable to older existing units (35153, 35157, 35224); detailed info on 
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current CCR management practices of state programs, including other than state waste 

authorities (35152, 35224); details on state CCR regulations (35157)

Total Number of Submissions: 270

Total Number of Comments: 395

Comment Number: EPA-HQ-RCRA-2009-0640-00369-1

Organization1:Texas Aggregates and Concrete Association (TACA)

Commenter1: Michael K. Stewart

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1

Comment Excerpt Text:

It is our understanding that the EPA is giving consideration to regulating fly ash under Subtitle C 

of the Resource Conservation Recovery Act (RCRA) or under Subtitle D of RCRA and is also 

evaluating whether to require closure of all active surface impoundments managing this type of 

material. Given these two options, TACA contends that the best management alternative for 

regulating fly ash would be under Subtitle D of RCRA. 

Most states, including Texas, have developed programs that successfully regulate the 

management and disposal of fly ash. As stated earlier, on May 22, 2000 EPA issued a 

determination that state regulatory programs were adequate to ensure proper management and 

disposal of fly ash. In addition, as recently as 2005 the EPA and the U.S. Department of Energy 

determined that such state regulatory programs have become even more stringent. TACA 

strongly believes that the regulatory program effective in Texas will provide that fly ash is 

managed and disposed in a manner that is protective of public health and the environment.

Response: The Agency acknowledges and appreciates this comment. Because EPA is deferring 

its final Bevill Determination, EPA has not responded to comments that pertain exclusively to 

that issue. However EPA has responded to significant comments that relate to topics that are 

otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the 

damage cases to support certain aspects of the technical requirements, EPA has responded to 

comments relating to the accuracy of the facts involved in the damage cases. EPA has not, 

however, responded to many comments on state programs because the Agency has made no 

final conclusions on the adequacy of those programs and is not relying on state programs to 

support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2009-0640-01833-2

Organization1:Sierra Club Oklahoma

Commenter1: Jody Harlan

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
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Comment Excerpt Text:

State regulation and enforcement are notoriously weak and subject to influence by profitmotivated corporations with local connections. Oklahoma agencies insist the others are 

responsible for regulation of coal ash. 

Response: The Agency acknowledges and appreciates this comment. Because EPA is deferring 

its final Bevill Determination, EPA has not responded to comments that pertain exclusively to 

that issue. However EPA has responded to significant comments that relate to topics that are 

otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the 

damage cases to support certain aspects of the technical requirements, EPA has responded to 

comments relating to the accuracy of the facts involved in the damage cases. EPA has not, 

however, responded to many comments on state programs because the Agency has made no 

final conclusions on the adequacy of those programs and is not relying on state programs to 

support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2009-0640-01833-7

Organization1:Sierra Club Oklahoma

Commenter1: Jody Harlan

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

State regulation and enforcement are notoriously weak or non-existent and subject to influence 

by unscrupulous, profit-motivated corporations with local connections. The Oklahoma 

Department of Environmental Quality, Water Resources Board and the Oklahoma Department of 

Mines each insist the other is responsible for regulation of coal ash in our state

Response: The Agency acknowledges and appreciates this comment. Because EPA is deferring 

its final Bevill Determination, EPA has not responded to comments that pertain exclusively to 

that issue. However EPA has responded to significant comments that relate to topics that are 

otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the 

damage cases to support certain aspects of the technical requirements, EPA has responded to 

comments relating to the accuracy of the facts involved in the damage cases. EPA has not, 

however, responded to many comments on state programs because the Agency has made no 

final conclusions on the adequacy of those programs and is not relying on state programs to 

support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2009-0640-02401-3

Organization1:Sierra Club Oklahoma
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Commenter1: Jody Harlan

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 8.7

Comment Excerpt Text:

State regulation and enforcement are notoriously weak or non-existent and subject to influence 

by unscrupulous, profit-motivated corporations with local connections. The Oklahoma 

Department of Environmental Quality, Water Resources Board and the Oklahoma Department of 

Mines each insist the other is responsible for regulation of coal ash in our state – even in public 

meetings when we show the video “Bokoshe: The Air We Breathe,” which you can see at 

http://vimeo.com/12533060.

This video, which was funded by Sierra Club Oklahoma, is about what is happening to 450 

citizens who live near a coal ash dump in the small town of Bokoshe (“Bo-ko-she) in 

southeastern Oklahoma. The coal ash company initially known as Making Money, Having Fun 

(now more tactfully renamed Clean Hydro Reclamation) has ruined their property and their lives 

by dumping coal ash in Bokoshe from the coal-fired AES Shady Point power plant in nearby 

Panama, Oklahoma. 

Oklahoma law prohibits locating a coal ash dump any closer than three miles from an 

incorporated city, so when MMHF went to the Oklahoma Corporation Commission for a permit, 

they just left the 100-year old, incorporated town of Bokoshe off their maps. They got away with 

it. Bokoshe citizens didn’t know until it was too late. 

This is supposed to be reclamation project that would fill up an abandoned lead mine. Instead, 

the owners of Making Money, Having Fun are building a toxic wall at least 50 feet high and 

growing. They have their own turquoise lake. The coal ash flies out of the trucks as “fugitive 

dust” on many 18-mile trips to Bokoshe every day. Sometimes school busses drive through it. 

The coal ash then leaks mercury, arsenic and other toxins into the groundwater that supplies 

drinking water and then runs down the 50 foot hill onto the neighbors’ property. The kids have 

asthma. The calves are stillborn. And 13 of 14 families who live within a half-mile of this toxic 

dump have cancer right now, including a toddler with leukemia, an 8th grade boy with breast 

cancer and a 35-year-old teacher who has had cancer twice. Several of her same-age exercise 

buddies are dead from cancer.

Response: The Agency acknowledges and appreciates this comment. Because EPA is deferring 

its final Bevill Determination, EPA has not responded to comments that pertain exclusively to 

that issue. However EPA has responded to significant comments that relate to topics that are 

otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the 

damage cases to support certain aspects of the technical requirements, EPA has responded to 

comments relating to the accuracy of the facts involved in the damage cases. EPA has not, 

however, responded to many comments on state programs because the Agency has made no 

final conclusions on the adequacy of those programs and is not relying on state programs to 

support any of the final rule’s provisions. The commenter is further referred to Unit VI of the 
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preamble for a presentation and discussion of the technical requirements of the rule as well as 

EPA’s discussion in Unit XI of the preamble regarding damage cases. 

Comment Number: EPA-HQ-RCRA-2009-0640-02821-4

Organization1:Missouri Coalition for the Environment

Commenter1: Matt Ashley

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.1.5 10.5.1.6

Comment Excerpt Text:

Power companies can dispose of coal ash under a broad "beneficial re-use" exemption according 

to Missouri's state regulations. 10 CSR 80-2.020 (9)(F). This includes selling the ash as an 

ingredient in concrete and the incredibly dangerous use of coal ash as back fill for construction 

sites. Using ash in concrete, or "encapsulated" form, has a lower (but not zero) potential for 

leaching, but using ash as construction fill in the "unencapsulated" form allows untold amounts 

of dangerous chemicals to leach into groundwater.

While the current Missouri regulation requires a permit from the Clean Water Commission to use 

coal ash for fill which limits the amount of coal ash to be used and the area to be filled, this does 

not prevent unsafe chemicals from leaching into groundwater. This dangerous Missouri practice 

would be prohibited entirely if coal ash were designated as a hazardous waste.

Response: The Agency acknowledges and appreciates this comment. Because EPA is deferring 

its final Bevill Determination, EPA has not responded to comments that pertain exclusively to 

that issue. However EPA has responded to significant comments that relate to topics that are 

otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the 

damage cases to support certain aspects of the technical requirements, EPA has responded to 

comments relating to the accuracy of the facts involved in the damage cases. EPA has not, 

however, responded to many comments on state programs because the Agency has made no 

final conclusions on the adequacy of those programs and is not relying on state programs to 

support any of the final rule’s provisions. The commenter is referred however to Unit IV of the 

preamble supporting this rule for a discussion on our decision to regulate CCR under subtitle D 

of RCRA. The commenter is also referred to Units IV and VI for a complete discussion of the 

beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-02930-3

Organization1:

Commenter1:Gloria Griffith

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
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Comment Excerpt Text:

one example highlighting the difficult time state legislatures have passing protective 

environmental laws and understanding one of many elements, selenium, involved in this 

proposed rule making.

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

referred to the risk analysis discussion in Unit X of the preamble as well as all the supporting 

documentation for that analysis.

Comment Number: EPA-HQ-RCRA-2009-0640-02930-4

Organization1:

Commenter1:Gloria Griffith

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

ATTACHMENT:

Technical Review of Tennessee State Legislature Bills HB-1204 and SB-1331

Proposing to Deregulate Selenate as a Water Pollutant, and Amended Bills

Proposing to Adopt EPA’s Fish Tissue Criterion for Selenium

prepared by

A. Dennis Lemly, Ph.D.

Research Professor of Biology

Wake Forest University

Winston-Salem, NC 27109

prepared for

Save Our Cumberland Mountains

April 2009

ANALYSIS OF ORIGINAL BILLS

Inorganic selenium is present in water in two principal forms: Selenate (SeO4) and Selenite 

(SeO3). A large amount of technical literature exists describing the environmental dynamics and 

toxicology of selenate and selenite — both bioaccumulate in aquatic systems and both are toxic 

to fish and wildlife. Yet, the Tennessee Legislature proposes to deregulate the selenate form, 

specifically stating in HB-1204 and SB-1331 that “Any toxic effluent limitation related to 

selenium shall not be applicable to selenate”, and “Any water quality criterion established for 
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selenium shall be established solely on the basis of the selenite form of the element”. This 

proposal suggests there is reason to believe that selenate is non-toxic and can be released into the 

environment without fear of negative impacts. Yet, no supporting scientific documentation is 

presented or cited and there is no explanation of the underlying rational. The premise that 

selenate is safe and should be exempt from regulation is absolutely not true. There is a large 

body of scientific literature indicating just the opposite. Because of selenium’s ability to 

bioaccumulate in aquatic food chains, selenate can be very hazardous to aquatic life, in fact, just 

as hazardous as selenite. Let me give a few examples from both field and laboratory studies.

1) Kesterson National Wildlife Refuge, CA:

In the 1980's, selenium in agricultural irrigation drainage bioaccumulated in a variety of aquatic 

habitats in central California at Kesterson National Wildlife Refuge. Fish were poisoned and 

there were massive deaths and deformities in waterfowl and other aquatic birds. This episode of 

contamination was extensively researched and documented by the U.S. Fish and Wildlife Service 

and the U.S. Geological Survey (Lemly et al.1993a, Presser 1994). These agencies determined 

that the chemical form of selenium responsible for the toxic catastrophe was selenate. Moreover, 

the process of selenium oxidation from source material, movement of waterborne selenate into 

the food chain, and ultimate poisoning of fish and wildlife was termed the “Kesterson Effect”. 

This was the most extensive case of wildlife poisoning by selenium in the U.S., and it was 

caused by selenate.

2) Laboratory experimental food chain:

Dobbs et al. (1996) dosed a three-trophic level food chain (algae, rotifers, fathead minnow fish) 

with selenate and examined bioaccumulation and toxic effects. By the end of the study all of the 

fish were dead and selenium had bioaccumulated to 1000 times the concentration in water.

3) Laboratory experimental food chain:

Similar to item 2 above, Bennett et al. (1986) dosed a three-trophic level food chain (algae, 

rotifers, fathead minnow fish) with selenate and monitored uptake and effects. Concentrations of 

selenium in fish tissues reached 51-61 parts per million within 2 weeks, which caused reduced 

growth rates.

4) Laboratory experimental food chain:

Besser et al. (1993) dosed a three-trophic level food chain (algae, zooplankton, bluegill fish) with 

selenate and selenite, and monitored uptake and accumulation from both waterborne and dietary 

sources. They found that in waterborne exposures “bluegills concentrated Se about equally from 

both inorganic species”. In dietary uptake studies they found that “Bioaccumulation of foodborne 

Se by daphnids and bluegills was similar in food chains dosed with different Se species”.

5) Laboratory uptake and toxicity:

Maier and Knight (1993) exposed a fish food organism (a benthic macroinvertebrate, 
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Chironomus) to selenate and selenite, and monitored bioaccumulation and toxicity. Selenate was 

found to be more than twice as toxic as selenite. Final tissue concentrations were in the range of 

60-80 parts per million dry weight for both forms.

6) Conversion of selenate to selenite:

Even if selenate was harmless, it is readily converted to selenite by a variety of biological and 

chemical processes in aquatic systems. For example, Maiers et al. (1988), Masscheleyn and 

Patrick (1993), and Bowie et al. (1996) have clearly documented this phenomenon in both 

laboratory and field studies. This means that selenate in a wastewater discharge doesn’t 

necessarily stay selenate but can, in fact, wind up as selenite. Thus, regulating one chemical form 

and not the other is meaningless from an environmental risk perspective.

Conclusions: There is no scientific basis for the proposed deregulation of selenate. Extensive, 

incontrovertible scientific research data show that selenate in wastewater effluent poses a 

significant toxic threat to fish and wildlife. Therefore, selenate should be regulated as part of the 

total selenium concentration or load, with no differentiation made between selenate and selenite. 

Moreover, water quality criteria should account for selenate as well as selenite.

ANALYSIS OF AMENDED BILLS

The revised House and Senate bills state that “Any water quality criterion for fish and aquatic 

life established for selenium shall not be more stringent than the recommended national criterion 

established by the United States Environmental Protection Agency at Volume 69, Federal 

Register No.242, Friday, December 17, 2004, or as subsequently modified by such agency”. In 

principle, this would seem to be a reasonable position. However, there are major technical flaws 

in the EPA criterion document that make the recommended tissue selenium concentration (7.9 

parts per million, dry weight) grossly underprotective. Skorupa et al. (2005) prepared a detailed 

technical review of the criterion document. They discovered and confirmed numerous 

fundamental scientific flaws, for example:

1) Key design features of the controlling experiment from which EPA derived the 7.9 ug/g 

criterion (Lemly 1993b) were overlooked. EPA did not recognize the full complexity of Lemly’s 

experimental design and its implications for estimating the magnitude of adverse effects. 

Lemly’s study was a segmented time-series design that included periodic removal of fish,without 

replacement. EPA erroneously analyzed the data as if it were a much simpler design. Correctly 

interpreted, Lemly’s data show that a tissue selenium concentration of 5.8 ug/g caused 50% 

mortality in juvenile bluegill fish. Thus, EPA is proposing a concentration that, at best, killed 

half of the test organisms. Based on Lemly’s results, the criterion value would need to be set at 

4.0 ug/g in order to fully protect fish from selenium toxicity.

2) The crucial regression equation relating selenium in fish ovaries to concentrations on a 

wholebody basis was erroneously reported. This error causes gross underestimation of the 

selenium concentration in eggs, and thus the threat of reproductive impacts. The end result is that 

the equation presented by EPA substantively misinforms risk assessment.
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3) Assessments of risk to wildlife were based on a draft wildlife toxicological benchmarks report 

rather than the much different final version, and focused too much on fish eating birds. The 

narrow focus neglects the more rigorous basis for wildlife risk assessment offered by other 

species. These flaws resulted in a criterion (7.9 ug/g) that would leave as much as half of 

aquatic-dependent wildlife species unprotected.

Since the release of its preliminary criterion in 2004, EPA commissioned an additional study 

(McIntyre et al. 2008) intended to duplicate the work of Lemly (1993b) and provide 

additionaldata for evaluation prior to finalizing the criterion. However, a major design flaw 

combined with operational differences in the execution of the study prevented the McIntyre et al. 

investigation from being a proper replication of Lemly. First, the design flaw. Whereas Lemly 

coupled reduced temperature with shortened photoperiod in order to simulate winter conditions 

(documented by records of daily lighted period as well as light intensity at the water surface), 

McIntyre et al. did not reduce photoperiod and do not indicate what the photoperiod or light 

intensity was. This has important implications for the response of their fish and interpretation of 

their results. Without a shortened photoperiod McIntyre et al. did not induce the Winter Stress 

Syndrome (WSS) described by Lemly, which was responsible for 50% mortality at 5.8 ug/g Se. 

Further, McIntyre et al. did not observe reductions in body condition and lipid content in their 

fish, as did Lemly. Failure to reduce photoperiod was a major design flaw in the McIntyre et al. 

study and it resulted in a significantly different exposure regime than Lemly’s. Thus, under the 

relatively long photoperiod cycle used by McIntyre et al., fish were feeding sufficiently to 

maintain lipid and body condition whereas Lemly’s fish were in a more dormant state, ate almost 

nothing, and experienced WSS. This resulted in much higher mortality at much lower tissue 

selenium levels in Lemly’s study. Secondly, important operational differences also prevented 

McIntyre et al. from correctly duplicating Lemly. For example, Lemly’s fish were exposed to a 

longer cold period. McIntyre et al. recognized this as the first, and most crucial, of several 

differences between the two studies and stated that “Of these differences, we expect only the first 

to have any possible significant effect on the results”. This admission underscores a simple truth, 

the two studies are not comparable. Because of major differences in exposure regime and

resultant physiological condition of fish, McIntyre et al. did not replicate Lemly’s study and their 

results cannot be used to refute its findings or support the proposed 7.9 ug/g EPA criterion (or a 

higher value).

Conclusions:

Several egregious errors bias EPA’s draft selenium criterion in the same direction, toward 

dangerously overestimating the safely tolerable tissue-based number. Technical analysis reveals 

that the proposed 7.9 ug/g value would allow up to 85% of fish and aquatic birds to be poisoned. 

Although a new study has emerged seeking to refine the toxic tissue threshold, it fails to provide 

useful information due to critical design flaws and confounding test conditions. Therefore, 

attempts by EPA or others to validate the 7.9 ug/g criterion value or adjust it upwards based on 

results from that study are scientifically unjustified. In short, if the Tennessee State Legislature 

follows its proposed course of action and adopts a criterion of 7.9 ug/g or higher, it will be 

adopting an environmentally invalid number.

References
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Bennett, W.N., A.S. Brooks, and M.E. Boraas. 1986. Selenium uptake and transfer in an aquatic 

food chain and its effects on fathead minnow larvae. Archives of Environmental Contamination 

and Toxicology 15: 513-517.

Besser, J.M., T.J. Canfield, and T.W. LaPoint. 1993. Bioaccumulation of organic and inorganic 

selenium in a laboratory food chain. Environmental Toxicology and Chemistry 12: 57-72.

Bowie, G.L., J.G. Sanders, G.F. Riedel, C.C. Gilmour, D L. Breitburg, G.A. Cutter, and D.B. 

Porcella. 1996. Assessing selenium cycling and accumulation in aquatic ecosystems. Water, Air, 

and Soil Pollution 90: 93-104.

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

three-trophic level food chain. Environmental Toxicology and Chemistry 15: 340-347.

Lemly, A.D., S.E. Finger, and M.K. Nelson. 1993a. Sources and impacts of irrigation drainwater 

contaminants in arid wetlands. Environmental Toxicology and Chemistry 12: 2265-2279.

Lemly, A.D. 1993b. Metabolic stress during winter increases the toxicity of selenium to fish. 

Aquatic Toxicology 27: 133-158.

Maier, K.J., and A.W. Knight. 1993. Comparative acute toxicity and bioconcentration of 

selenium by the midge, Chironomus decorus, exposed to selenate, selenite, and seleno- DLmethionine. Archives of Environmental Contamination and Toxicology 25: 365-370.

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

bacteria from a selenium-rich environment. Applied Environmental Microbiology 54: 2591-

2593.

Masscheleyn, P.H., and W.H. Patrick, Jr. 1993. Biogeochemical processes affecting selenium 

cycling in wetlands. Environmental Toxicology and Chemistry 12: 2235-2243.

McIntyre, D.O., M.A. Pacheco, M.W. Garton, D. Wallschläger, and C.G. Delos. 2008. Effect of 

Selenium on Juvenile Bluegill Sunfish at Reduced Temperature. EPA-822-R-08-020. U.S. 

Environmental Protection Agency, Office of Water, Washington, DC.

Presser, T.S. 1994. The “Kesterson Effect”. Environmental Management 18: 437-454.

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

Tissue-Based Selenium Criterion: A Technical Review. Technical Report. U.S. Fish and Wildlife 

Service, Division of Environmental Quality, Arlington, VA.

Response: The Agency acknowledges and appreciates this comment. The Agency is familiar 

with the damage cases associated with elevated levels of bioaccumulated selenium in fish.

Considering that these damages are caused by NPDES-permitted effluent discharge, these 
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issues are outside the scope of this rule but would be addressed by the amended Effluent 

Limitation Guidelines for the steam industry which are scheduled for publication in 2015. 

Comment Number: EPA-HQ-RCRA-2009-0640-03053-6

Organization1:

Commenter1:Chris Barnes

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1 4.2.2

Comment Excerpt Text:

For example, Xcel Energy, one of the larger power corporations in the United States, 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 impoundments will not create disasters such as the one already 

seen. Basically, these requirements would be national but placed onto the company as 

requirements from the state-level organizations that mandate certain rules and ensure the 

regulations are met. This leaves the majority of the regulation to each individual state, as it has 

been since CCRs were found to need regulation.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect 

states to incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-03444-14

Organization1:Kansas Department of Health and Environment

Commenter1: William L. Bider

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Kansas program could serve as a model for federal regulation under Subtitle D with 

provisions for states to exercise appropriate flexibility to administer their program based upon 
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their own unique geology and climate.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect 

states to incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-03444-2

Organization1:Kansas Department of Health and Environment

Commenter1: William L. Bider

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Kansas has eight (8) coal-burning power plants that manage fly ash, bottom ash, and various air 

pollution control residuals in landfills and surface impoundments. Through more than 50 years of 

operating history, there has never been an incident where an environmental release has impacted 

surface water or groundwater. It is clear from this result that increased regulation will not yield 

any benefit. Human health and the environment has been adequately protected by the permitting 

laws and regulations that are presently in-place in Kansas.

At present, Kansas has a full system of waste and water permits and a beneficial use approval 

process to ensure that CCRs are properly managed to prevent impacts to human health or the 

environment.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect 

states to incorporate the CCR rules into state solid waste management plans. The commenter 

is further referred to Unit VI which presents the technical standards being promulgated by this 

rule.

Comment Number: EPA-HQ-RCRA-2009-0640-03444-32

Organization1:Kansas Department of Health and Environment

Commenter1: William L. Bider

Commenter Type: State Government

Classification: Substantive

Comment Category:
16

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1

Comment Excerpt Text:

The long history of safe CCRs waste management in Kansas under state laws and regulations 

that are substantially equivalent to the federal Subtitle D standards demonstrates that these 

regulatory standards are adequate and effective in protecting human health and the environment.

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-03934-14

Organization1:Kentuckians For The Commonwealth (KFTC)

Commenter1: Nancy L. Reinhart

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

We recommend that the EPA refuse to grant Kentucky primacy over these regulations. If that is 

not possible, the EPA should take all steps necessary to ensure enforcement and mitigation after 

the rule is adopted, including consistent and ongoing oversight of state activities.

Implementing and enforcing new CCR regulations will not happen in Kentucky under a business 

as usual scenario. Regulatory agencies in this state operate in a culture of willful negligence. 

There are many documented examples to prove this – many of which our members have 

presented to EPA staff in meetings over the last year.

The Kentucky Division of Water’s (KDOW) failure to enforce water quality standards in 

Kentucky’s waterways, which are primarily damaged by coal-related activities, represents 

perhaps the most egregious form of this negligence. 2,500 miles of streams in the Eastern 

Kentucky coal mining region fail to meet water quality standards, with mining named as the 

known or suspected pollution source (Kentucky Division of Water Integrated Report on Water 

Quality to Congress, 2008). People’s well water is routinely degraded and/or destroyed by the 

coal industry activities. Kentucky’s contaminated streams drain into rivers that serve as public 

drinking water sources not only for mountain communities but also for Kentucky's most 

populous cities. Seeing nearby streams running orange or black, many Eastern Kentucky 

residents routinely drink bottled water, fearing that even the treated water supply is not safe to 

drink.
17

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale 

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

impoundments. The commenter is also referred to Unit IX of the preamble for a discussion on 

how EPA expect states to incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-03934-16

Organization1:Kentuckians For The Commonwealth (KFTC)

Commenter1: Nancy L. Reinhart

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

There are untold numbers of open, illegal coal ash dumps throughout the state as well. Residents 

of Harlan County, Kentucky report open dumps of CCR that are compacted with dozers and 

covered with dirt. One observer said, “the workers who dump it and compact it do not use any 

protective equipment. Dust from it is flying around all the time.” The illegal CCR dumps he is 

referring to are located within a couple of hundred feet of the Poore Fork of the Cumberland 

River and adjacent to US 119, the main road that links the city of Harlan and the Tri-Cities 

communities of Cumberland, Benham and Lynch.

Even given the presence of solid evidence, no meaningful action has been taken to improve 

impaired waterways or address illegal CCR dumping. Having witnessed this utter disregard of 

water quality standards over the last three decades, KFTC and other groups have recently 

requested that the EPA rescind KDOW’s authority to issue Clean Water Act permits. In light of 

this request, KFTC recommends that the EPA retain primacy over implementing and enforcing 

new CCR regulations in Kentucky.

If that is not possible, the EPA should take all steps necessary to ensure enforcement and 

mitigation after the rule is adopted, including consistent and ongoing oversight of state activities. 

We do not expect that KDOW and other regulatory agencies will implement new CCR 

regulations in a timely and effective manner without outside pressure. We urge the EPA to use 

its authority and the authority of the executive branch to encourage speedy state passage of 

commensurate state laws and to ensure proper enforcement. EPA should also offer consistent and 
18

ongoing monitoring of state adherence to the regulations. This leadership is critical to ensure 

protection of Kentuckians going forward.

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale 

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

impoundments. The commenter is also referred to Unit IX of the preamble for a discussion on 

how EPA expect states to incorporate the CCR rules into state solid waste management plans. 

------------------------------------------------------------------------------------------------------

Comment Number: EPA-HQ-RCRA-2009-0640-04001-6

Organization1:Coresco, LLC

Commenter1: Carrie D. Lilly

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.3

Comment Excerpt Text:

2. The Rule fails to recognize tile sufficiency of state programs 

The Rule indicates that the adequacy of state regulation is one of the key issues before the EPA, 

and the Rule solicits information on the details of state regulatory structures. The Rule notes that 

the EPA study evaluating state regulatory oversight involved only eleven states, which account 

for approximately half of the CCRs generated in the United States. The Rule is based upon an 

incomplete analysis of state programs and it is premature for EPA to suggest that state regulatory 

programs are inadequate. The Rule fails to recognize that states have not been given an 

opportunity to regulate and evaluate state programs in light of the recent federal guidance (which 

needs clarification). The rulemaking process should be delayed until the federal guidance has 

been clarified, and until a proper, thorough analysis of state programs has been conducted.

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 
19

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

commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale 

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

impoundments. The commenter is also referred to Unit IX of the preamble for a discussion on 

how EPA expect states to incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-04001-7

Organization1:Coresco, LLC

Commenter1: Carrie D. Lilly

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.3.2 10.5.2.4 11.2.5 10.5.2.3

Comment Excerpt Text:

One alternative suggested in the Rule is whether the EPA should promulgate standards allowing 

unencapsulated uses of CCRs on a site-specific basis, based on site specific risk assessment, 

taking into consideration various factors including CCRs character and composition, leaching 

potential under the range of conditions under which CCRs will be managed, and the context in 

which the CCRs will be applied, such as location, volume, rate of application, and proximity to 

water. A thorough evaluation of existing state regulatory programs will likely show that states 

are already performing such an analysis with respect to unencapsulated uses of CCRs, and that 

federal regulation would be duplicative and unnecessary. Below is a summary of state 

regulations in West Virginia and Pennsylvania. The Rule specifically solicits information about 

state leachate requirements. As noted below, both West Virginia and Pennsylvania have taken 

active approaches with respect to leachate standards.

A. West Virginia

In accordance with the Coal Combustion By-Product Utilization Policy! of the West Virginia 

Department of Environmental Protection (WV CCB Policy), the Division of Mining and 

Reclamation (OMR) may approve the utilization of coal combustion by-products (CCBs) for 

beneficial use. The OMR evaluates beneficial use in accordance with plans, design 

specifications, testing procedures, and monitoring requirements. The WV CCB Policy contains 

specific compliance requirements for the use of CCRs as a source of alkaline addition to 

neutralize potentially acid-producing materials in connection with coarse coal refuse, line coal 

refuse, and combined coal refuse disposal sites. The net neutralization potential of the CCRs 

must he greater than or equal to 5 tons per 1000 tons CaCO3 equivalent, and there is a 

mathematical formula for calculating the minimum quantity of required amendment, based upon 

the amount of refuse to be neutralized, the percent sulfur, and the percent net neutralization 

potential of the amendment. The mathematical calculation for the amount of required 

amendment provides for a 10% safety factor. CCRs to be utilized on surL1ee mining operations 

are required to be tested and analyzed by the permit applicant for certain parameters and 

properties. The WV CCB Policy requires at least annual testing for the Toxicity Characteristic 

Leaching Procedure (I'CLP) test (ii)r metals only), and the OMR has the authority to require 
20

additional periodic retesting of the CCBs. If there is a change in the source of the CCBs being 

utilized, prior approval of the change must be requested and testing and analysis must be 

performed on the CCBs from the new source. The WV CCB Policy expressly provides that CCSs 

which exhibit potentially toxic or potentially acid producing characteristics will not be approved 

for beneficial use. The WV CCB Policy provides that the decision to issue or deny a permit will 

be in favor of minimizing risk to the environmental integrity of the State's air, land and water. 

West Virginia regulations favors public participation in the permitting process. Upon filing a 

permit application, the applicant is required to provide proof of notification (by certified mail) to 

residents living on properties contiguous to the proposed permit area. Additionally, a copy of the 

permit application is required to be made available for public review in the county clerk's office 

where the proposed activity is to take place. Before a permit is issued, the permit is advertised in 

publications of general circulation and a copy of the permit application is made available for 

public review in the DEI' regional office. 

B. Pennsylvania

Proposed rules under Chapter 290 of the Pennsylvania Code regarding the storage and beneficial 

use of coal ash arc under review in Pennsylvania. Among other things, the proposed Chapter 290 

rules establish chemical leachate standards and procedures for qualifying coal ash for beneficial 

use, which is currently done by certification by policy, in accordance with regulations under 

Pennsylvania's larger waste rulemaking process. The Chapter 290 rules would remove coal ash 

regulations from the waste rules, and would create targeted rulemaking focused on coal ash 

issues. The proposed Chapter 290 rules establish loading rates to ensure protective usc of coal 

ash as a soil amendment and siting restrictions for storage areas to protect groundwater and 

surface water, including distance from streams, wetlands, water sources, and others. In addition, 

the rules contain design and operating standards for the storage of coal ash in piles and surface 

impoundments. Leachate standards arc based on twenty-five (25) times the waste classification 

standard for metals and other cations and the drinking water standards fill' other contaminants. 

The factor of 25 allows for dilution and attenuation of metals and other cations that is known to 

occur. 

The Rule solicits comments on states' practices in providing for public participation in the 

development of permitting requirements. The review process for the Chapter 290 rules follows 

the same procedure all as similar rule makings in Pennsylvania: interested persons arc invited to 

submit comments, suggestions or objections regarding the proposed rules to the Environmental 

Quality Board (EQB); public hearings are held for the purpose of accepting comments on the 

proposed rulemaking; the Pennsylvania Department of Environmental Protection (PADEP) 

submits a copy of the proposed amendments to the Independent Regulatory Review Commission 

(IRRC) and the House and Senate Environmental Resources and Energy Committees 

(Committees); PADEP provides lRRC and the Committees with a detailed Regulatory Analysis 

Form and makes a copy of the material available to the public upon request.

Response: The commenter is referred to Unit IV of 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. 
21

Comment Number: EPA-HQ-RCRA-2009-0640-04005-3

Organization1:

Commenter1:James Burch, Ph.D., et. al.

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Innocent people’s lives should not be sacrificed in order to generate electricity. The fact that 

studies performed by the EPA and others have already documented public health and 

environmental impacts associated with offsite releases of coal ash waste indicates that state or 

local governments cannot be comprehensively relied upon to protect the public’s health or 

provide adequate environmental protection. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-04138-1

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Commonwealth of Kentucky currently has the responsibility to oversee the proper 

management and beneficial reuse of Coal Combustion Residuals within the state. We believe that 

the management of CCR is best handled at the local and state level. Kentucky also recognizes 

that appropriate additional controls are warranted for the management of CCR. 

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

referred to Units IV and V of the preamble discussion for the Agency’s 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-2009-0640-05439-1

Organization1:

Commenter1:Robert D. Edstrom, Ph.D.
22

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Although the proposed rule published in the Federal Register (June 21,2010, Vol. 75, No. 118) 

describes in detail the options for regulating under RCRA subtitle C or subtitle D, the dominant 

theme of this rule appears to be; keep CCRs dry. I believe the EPA would be well served by 

focusing on the causes of past spills that, by EPA admission, have been caused by the lack of 

consistent state management and the regulation of surface impoundments.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-05714-1

Organization1:Physicians for Social Responsibility (PSR)

Commenter1: Mass Comment Campaign sponsored by Physicians for Social Responsibility 

(76)

Commenter Type: Advocacy Group

Classification: Non-substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:

As a person concerned about individual and public health, I support EPA's decision to regulate 

coal ash under the Subtitle C option. As a resident of North Carolina, I am aware of the dangers 

of coal ash. With 13 coal ash ponds currently leaking toxic chemicals into groundwater, and 12 

already classified as high hazard by the EPA, N.C communities are particularly vulnerable. NC 

regulators have been unwilling to properly protect its citizens and environment, and I believe 

strong federally enforceable standards are needed. 

Because of all the toxic chemicals and heavy metals in coal ash, it is unreasonable to classify and 

treat coal ash as household garbage. Coal ash should be regulated as hazardous waste, since, 

under your guidelines, it poses "a substantial (present or potential) hazard to human health or the 

environment when improperly treated, stored, transported, or disposed of, or otherwise 

managed." Failure to do so would be morally unacceptable. Please select the Subtitle C option. 
23

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-05752-6

Organization1:Foothills Group of the Sierra Club

Commenter1: G. Preschle

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

A vast majority of states do not even require monitoring to see if coal ash is polluting drinking 

water.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06011-2

Organization1:Public Service Commission (PSC) - State of North Dakota

Commenter1: Tony Clark

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 11.2.5

Comment Excerpt Text:

The Public Service Commission (PSC) is the state agency responsible for regulating public 

utilities in North Dakota as well as regulating surface coal mining operations pursuant to the 

federal Surface Mining Control and Reclamation Act of 1977 (SMCRA) and under the oversight 

of the Office of Surface Mining (OSM). We strongly believe the regulation of CCR disposal 

needs to remain with each state since the appropriate state regulatory agency is in the best 

position to develop regulations that are tailored to fit the specific conditions in that state.
24

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06011-9

Organization1:Public Service Commission (PSC) - State of North Dakota

Commenter1: Tony Clark

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.2

Comment Excerpt Text:

The PSC believes North Dakota's regulation of CCR disposal already includes the components 

that are needed to protect the environment and public health. We also believe it is unnecessary 

that EPA regulate CCRs as non-hazardous waste under Subtitle D of RCRA as being considered 

under the proposed rules. 

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

Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule 

for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of 

the preamble for a presentation and discussion of the technical standards the Agency is promulgating in 

this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on 

how EPA expect states to incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to comments 

that pertain exclusively to that issue. However EPA has responded to significant comments that relate 

to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is 

relying on the damage cases to support certain aspects of the technical requirements, EPA has 

responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, 

however, responded to many comments on state programs because the Agency has made no final
25

conclusions on the adequacy of those programs and is not relying on state programs to support 

any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2009-0640-06068-6

Organization1:Utah Physicians for a Healthy Environment

Commenter1: John Veranth

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

On FR page 35133 is indicated that EPA is seeking comment on “adequacy of state programs 

[for CCRs].” This is a problem in Utah since the State Department of Environmental Quality is 

prohibited by statute from imposing requirements stricter that the corresponding federal 

regulation. Thus, the state program in Utah defaults to the minimum allowable under the federal 

rules. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06129-5

Organization1:City Utilities of Springfield, MO

Commenter1: David M. Fraley

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
26

Comment Excerpt Text:

This observation is especially true in Missouri, where the state has already implemented an 

aggressive regulatory program for CCRs. Missouri is among a number of states that studied this 

issue years ago and developed technically sound solid waste rules that hearken to engineering 

standards applicable to municipal solid waste landfills, yet recognize the chemical, physical, and 

operational issues unique to these dedicated disposal areas. The Missouri rules do require landfill 

liners and groundwater monitoring, two parameters specifically solicited by EPA in the proposal. 

While City Utilities has always managed CCRs in engineered disposal units, these state rules 

have pushed other generating facilities to move away from disposal impoundments to dry, 

aboveground monofills.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06190-6

Organization1:Lafayette Utilities System

Commenter1: Lisa G. Dowden and Steven C. Pearson

Commenter Type: Electric Utility Facility

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA has specifically sought comment on the adequacy of state regulatory programs to ensure 

proper management of CCRs. [Footnote 13: 75 Fed. Reg. at 35,133]. Lafayette supports the Dprime option because it is consistent with the Louisiana regulations under which the Rodemacher 

surface impoundments are currently permitted and operated. The effectiveness of Louisiana’s 

existing regulatory framework supports Lafayette’s position. As noted in the May 29, 2009 

Comments submitted in this proceeding by the LDEQ, Louisiana has successfully regulated CCR 

through its industrial solid waste program since 1983. [Footnote 14: May 29, 2009 letter from 

Cheryl Sonnier Nolan, Assistant Secretary of LDEQ to Matt Hale, Director of Resource 
27

Conservation and Recovery of EPA]. Notwithstanding the fact the LDEQ has seen no data 

suggesting that CCR qualifies as hazardous waste, the LDEQ requires permitted impoundments, 

such as those at Rodemacher, to have liners [footnote 15: The Rodemacher impoundments are 

clay-lined, consistent with regulatory requirements at the time of construction. New 

impoundments in Louisiana must have composite liners] and groundwater monitoring programs, 

in addition to meeting all national standards for location, design, operation, closure, post closure, 

corrective action and monitoring. [Footnote 16: Id.]. 

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

twenty-seven years, and “all available soil, groundwater and surface water monitoring data show 

that [Louisiana’s] current regulatory scheme is fully protective of those media.” [Footnote 17: 

Id.]. EPA should not punish responsible coal generating utilities that have operated in 

compliance with effective state regulatory programs by imposing costly retrofit or closure

requirements that the state, which has twenty-seven years of experience regulating these wastes, 

has not found necessary. Even if EPA concludes that there is a need to strengthen regulation in 

states that have not taken such proactive measures to regulate the storage and disposal of CCR, 

there is no need for EPA to pursue such a course in Louisiana, or in other states where existing 

successful state programs already protect the environment.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06196-31

Organization1:Comite Dialogo Ambiental

Commenter1: Ruth Santiago

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.2

Comment Excerpt Text:
28

EPA’s lack of regulation of CCRs is based, in part on presumed state regulation. In the case of 

Puerto Rico, the “gaps in state oversight”, means that there is an absolute void in terms of CCR 

regulation.

The regulation of nonhazardous wastes in Puerto Rico is delegated to a government body known 

as Junta de Calidad Ambiental or Environmental Quality Board (EQB). To this date, there is no 

regulation regarding CCR generation, disposal or secondary use. It should be noted that there are 

no disposal facilities (e.g. landfills, impoundments) in Puerto Rico for CCRs.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06203-10

Organization1:Arizona Public Service Company (APS)

Commenter1: Scott Davis

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.2.2 7.4.1

Comment Excerpt Text:

A. Mechanism for State Implementation of CCR Rules

While APS supports the Subtitle D Prime option, a major shortcoming of this approach, as well 

as with the other Subtitle D alternatives, is the lack of any mechanism for qualified state 

programs to step in and directly administer the Subtitle D CCR regulations, where the state 

programs meet or exceed the federal controls. Such an approach makes no practical sense, and it 

would result in parallel and redundant regulatory programs for the same materials. Many states 

have regulatory programs in place that meet or exceed the Subtitle D standards in EPA's proposal 

and for this reason APS believes the D-Prime option should allow qualified state programs to 

administer the federal program.
29

For example, the Arizona Department of Environmental Quality ("ADEQ") administers the 

Aquifer Protection Permit program ("APP Program"). This is a comprehensive program that 

protects the state's groundwater resources by a combination of discharge reduction through use 

of Best Available Demonstrated Control Technology ("BADCT") and compliance with Aquifer 

Water Quality Standards ("AWQS") at the applicable Point of Compliance ("POC").

A permitee is required to "...ensure the greatest degree of discharge reduction achievable through 

application of the best available demonstrated control technology, processes, operating methods 

or other alternatives, including, where practicable, a technology permitting no discharge of 

pollutants." Arizona Revised Statutes § 49243. B.1. Pollutants discharged from the permitted 

facility may not exceed an AWQS at the applicable POC. The POC is located down gradient of 

the site at the edge of the Pollution Management Area ("PMA"). There are both numeric and 

narrative standards that apply and all aquifers are protected for drinking water use and the 

AWQSs are drinking water standards. In addition, if the ambient water quality of the aquifer 

exceeds an AWQS, no pollutant discharged may further degrade the water quality at the 

applicable POC.

The program is broad in scope and detailed in its requirements. All facilities that discharge are 

required to obtain an Aquifer Protection Permit (APP). The definition of discharge is "...the 

addition of a pollutant from a facility either directly to an aquifer or to the land surface or the 

vadose zone in such a manner that there is a reasonable probability that the pollutant will reach 

an aquifer." Arizona Revised Statutes § 49-201.12. In addition to this general requirement, many 

facilities are categorically defined as discharging facilities. These include surface impoundments 

and solid waste landfills. Arizona Revised Statutes § 49-241 .B 1. An aquifer is defined as "a 

geologic unit that contains sufficient saturated permeable material to yield usable quantities of 

water to a well or spring." Arizona Revised Statutes § 49-201.2. The APP regulations further 

define the term "usable quantities" to mean "...five gallons of water per day." Arizona 

Administrative Code R18-11-501.4.

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

• BADCT

• Compliance with AWQSs at the POC

• Technical Capability
30

• Financial Capability

• Zoning

The aquifer protection permit program is designed to protect groundwater quality using a two 

tiered approach. The first level of protection is discharge reduction through the use of BADCT. 

The goal of the BADCT requirement is to prevent to the greatest extent possible the discharge of 

pollutants to the aquifer. In fact as noted above, the BADCT design must, where practicable, 

include alternative technologies permitting no discharge of pollutants. Permits include inspection 

and monitoring requirements to insure that the facility BADCT performs as designed.

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

Revised Statutes § 49-243. The POC is located in the shallow most aquifer at the downgradient 

edge of the PMA. For example, the PMA for a surface impoundment is the outer edge of the 

impoundment. The POC must also be located to ensure protection of all current and reasonably 

foreseeable future uses of the aquifer. Arizona Revised Statutes § 49-244.

The permittee must also show that they have the technical and financial capability to construct, 

operate and eventually close the facility. Arizona Administrative Code R18-9-A203. Design 

plans and most required technical reports require submittal by a registered engineer or geologist. 

The permittee must also submit financial information on the costs to construct and operate, and 

the cost associated with post closure and closure of the facility. The permit would not be issued 

without presenting an approved method of financial assurance. This showing can take the form 

of a surety bond, certificate of deposit, trust fund, letter of credit, insurance policy, cash deposit, 

or financial guarantees. ADEQ can withdraw approval to operate if there is evidence that the 

permittee would lose the capability to meet the requirements for financial assurance.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.
31

Comment Number: EPA-HQ-RCRA-2009-0640-06223-2

Organization1:Ohio Utility Group

Commenter1: Michael E. Born

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

I. Ohio EPA has adequate and appropriate laws and regulations that govern CCR handling and 

disposal; increased federal regulation is not needed.

Since 1976, Ohio Revised Code (“ORC”) Chapters 3745 and 3734 have required permitting and 

regulation of CCRs as either a solid waste or as a special waste. Ohio Administrative Code 

(“OAC”) Chapters 3745-27, 29, and 30 provide a comprehensive regulatory scheme for 

permitting CCRs such as scrubber sludge or gypsum and other industrial and municipal solid 

wastes. OAC Chapter 3745-31 requires installation permits for ash disposal facilities. As a result 

of these rules, all CCR facilities constructed in Ohio since the early 1980s have permits and 

substantial regulatory oversight by Ohio EPA.

Not only is Ohio’s regulatory oversight substantial, it meets and exceeds U.S. EPA standards for 

an “adequate” regulatory program for solid waste. In the preamble, EPA identifies several 

characteristics of an adequate state program, including: 1) leachate collection; 2) groundwater 

monitoring; 3) whether a unit must be lined; 4) the effectiveness of existing management units 

compared to new units; 5) whether the state requires routine analysis of CCRs; and 6) the overall 

extent of permit requirements. Ohio’s solid waste laws provide broad and comprehensive 

legislation addressing landfill permitting, siting and design standards, financial assurance, 

owner/operator background checks, solid waste planning, disposal fees, and state recycling 

goals.

With respect to solid waste regulations, ORC 3734.05(A)(2) states that “each person proposing 

to open a new solid waste facility or to modify an existing solid waste facility shall submit an 

application for a permit with accompanying detail plans and specifications to the environmental 

protection agency for required approval . . . pursuant to division (A) of section 3734.02 . . . and 

division (D) of section 3734.12.” Specifically, facilities responsible for the management of CCRs 

are designated as Class III Residual Waste Landfills. Regulatory requirements include:

-Permit to Install Application (OAC 3745-30-05)

-Specific Siting Criteria (OAC 3745-30-06(H))

-Construction and Design Quality Assurance Requirements (OAC 3745-30-07(H))which 
32

provides for testing procedures and frequency, soil liner system, leachate collection and 

management system, cap system, permanent groundwater control structures, and permanent 

surface water control structures

-Groundwater Monitoring Program (OAC 3745-30-08)

- Final Closure/Post-Closure Plan (3745-30-09)

An additional measure of protection for Class III Residual Waste Landfills is the requirement to 

conduct laboratory leaching tests on the residual waste. Fifteen parameters are required for 

Ohio’s Class III Residual Waste leaching tests: arsenic, barium, cadmium, chloride, chromium, 

fluoride, iron, lead, manganese, mercury, pH, selenium, sodium, sulfate and total dissolved 

solids. (OAC 3745-30-03(A)(1) and OAC 3745-30-04 Appx. I). Over the past twenty-five years, 

Ohio EPA and the industry have developed a significant data base which includes the physical 

and chemical characteristics of CCRs, as well as their potential impacts on groundwater and the 

environment. Ohio EPA’s analysis of the permitted facilities demonstrates that CCR units in 

Ohio are well regulated and have a minimal impact on the environment [Footnote 1:“Correlating 

Geologic Setting, Engineering and Groundwater Quality at Hazardous and Non-Hazardous 

Waste Storage, Treatment and Disposal Sites in Ohio.” Ohio Environmental Protection Agency, 

Division of Drinking and Groundwater (September 4, 1998).]. Furthermore, it is anticipated that 

the potential impacts from these regulated facilities on the environment will be further 

minimized in light of Ohio’s adoption of more stringent regulationsin 2004 [Footnote 2: Ohio 

EPA Guidance #0690, Solid Waste Landfill Siting, Permitting, & Hydrogeologic Investigation 

(June 2004).].

Ohio has also operated a similar program for surface impoundments under its wastewater 

preconstruction permitting program. The development of new surface impoundments has been 

authorized under the permitting requirements in OAC Chapter 3745-31, and new facilities 

incorporate many of the same safeguards found in the Class III Residual Waste Rules. 

Discharges from the impoundments are authorized under the National Pollutant Discharge 

Elimination System (“NPDES”) permitting program and are subject to routine monitoring and 

reporting requirements. Most new facilities incorporate liners, groundwater monitoring, and 

follow similar siting standards as those applied to dry landfill facilities.

In short, states like Ohio already have adequate regulatory programs in place to address CCRs. 

The isolated failure of a minority of other states to adopt similar programs does not justify a 

massive federal undertaking and cannot justify regulating CCRs as hazardous waste.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
33

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06226-8

Organization1:Pennsylvania Coal Association (PCA)

Commenter1:Josie Gaskey

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.3

Comment Excerpt Text:

Pennsylvania already has an effective structure in place to handle CCRs

Pennsylvania has more than 30 years experience successfully and effectively managing CCRs. 

Our residual waste regulations govern the transportation, storage and disposal of CCRs and are 

based on scientific and engineering standards similar to the RCRA Subtitle D-authorized 

municipal waste regulations. Pennsylvania's current monitoring and operational requirements 

exceed what is being proposed in either Subtitle C or Subtitle D. These include specific 

requirements for the characterization of coal ash, including sampling protocol and established 

analytical limits. Their experience and successful environmental efforts are outlined in an April 

10, 2009 letter to Mr. Matt Hale at EPA from PA DEP Deputy Secretary Thomas Fidler as 

follows:

"Since 1985 DEP has provided oversight on the use of the beneficial use of coal ash for mine 

reclamation and other uses. In 1992, Pennsylvania implements regulations governing the 

management of coal combustion wastes covering storage, disposal and beneficial use. Under 

those regulations and oversight, coal [ash] has been successfully used for mine reclamation 

throughout the Commonwealth. Through our groundwater monitoring program and data 

collected at reclamation sites, we have found no indication of ground water degradation 

attributable to the placement of coal ash."

Given the proven track record of the success of the beneficial use program, it makes no sense to 

suggest that Pennsylvania not administer the federal Subtitle D rules. 

In addition to the Pennsylvania mine reclamation regulations which require mining companies to 

post a bond to ensure that reclamation of the mine is completed, OSM oversight data of the 

Pennsylvania mining program indicate PA DEP is administering a program where active mining 

sites are, with few exceptions, in compliance with planning, mining, and reclamation standards. 
34

Reclamation of active mining sites is thorough and proceeds in a contemporaneous fashion. PA 

DEP's abandoned mine land program restoration is effective in abating safety and environmental 

problems on previously mined sites. These Pennsylvania programs continue to effectively 

achieve or exceed the regulatory and reclamation goals of SMCRA.[Footnote 5: 2010 Annual 

Evaluation Report, U.S. Department of the Interior, Office of Surface Mining and Reclamation, 

Pittsburgh Field Division, Harrisburg Office.]

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06248-1

Organization1:Lignite Energy Council

Commenter1:John W. Dwyer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The North Dakota Department of Health (NDDOH) regulates the disposal of CCRs as well as the 

beneficial use of CCPs.3 In particular NDDOH Guideline 11 outlines the specific areas that must 

be addressed by any company proposing to beneficially use CCPs. These areas include, but are 

not limited to, identifying the ash quality and quantity, the proposed use of the ash, site 

characterizations, potential receptors, how the material will be handled, contingency plans in 

case adverse environmental conditions arise, how the site will be monitored to ensure 

environmental protection, what will be done when the use of the material is completed, any local 

health or zoning issues, and site closure and reclamation.4 Depending upon the nature of the 

project, the guideline requires, among other things, leach analysis; a field simulation that will 

determine any impact on the environment from initial waste placement; an analysis of any 

potential impact through continued weathering, mechanical abrasion, erosion, and fill runoff; and 

monitoring of surface, groundwater and soil.5 This comprehensive program ensures that the 
35

beneficial use of CCPs is conducted in a manner which does not adversely impact the 

environment. 

Coal combustion products are also used for soil stabilization applications, liquid solidification 

and for subbase enhancement for haul roads at lignite mines in North Dakota. Fly ash is also 

used as cement replacement in grout injection to fill abandoned underground mines in North 

Dakota. The North Dakota Public Service Commission (PSC) operates the North Dakota 

Abandoned Mine Land Reclamation Program pursuant to the Surface Mining Control and 

Reclamation Act. Oversight of the program is conducted by the regional field office of the Office 

of Surface Mining. North Dakota has 600 documented underground abandoned mine lands 

(AMLs). The PSC utilizes a grout mix that includes fly ash which was reviewed and approved by 

the NDDOH for use in AML projects. In addition, the PSC requires contractors performing the 

reclamation of AMLs to test the grout to ensure that it meets specifications established by 

NDDOH. 

1 Review of North Dakota Regulations, Standards, and Practices Related to The Use of Coal 

Combustion Products, 

Final Report, Energy & Environmental Research Center, April 2008.

2 Id.at page 5.

3 See, Chapter 23-29 N.D.C.C. (ND Solid Waste Law); Article 33-20 N.D.A.C. (ND Solid 

Waste Management Rules); 

and Chapter 61-28 N.D.C.C. (ND Water Pollution Law). 

4 Guideline 11 – Ash Utilization for Soil Stabilization, Filler Materials and Other Engineering 

Uses, ND Department of 

Health, March 2010. 

5 Id.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06251-65

Organization1:We Energies

Commenter1: Art Covi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

COMMENT: We Energies used monofill landfills and followed Wisconsin regulations and 

approvals for CCP disposal in place for that period of time. Obviously, regulations, standards 

and designs have evolved over time. One important change was the self implementing provisions 

of NR 538 which facilitated utilization to meet construction needs and schedules as opposed to 

individual exemptions for use on a specific project basis. Self implementation was a key 

supportive feature of the regulation which made beneficial use more acceptable and desirable by 
36

contractors and engineers.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06260-1

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5

Comment Excerpt Text:

The Commonwealth of Kentucky currently has the responsibility to oversee the proper 

management and beneficial reuse of Coal Combustion Residuals within the state. Kentucky 

recognizes that appropriate additional controls are warranted for the management of CCR based 

on historical practices and monitoring. Regulation of coal combustion residuals should be 

revised, but the method of regulation should be carefully considered given the possible costs and 

benefits. However, we believe that the management of CCR is best handled at the local and state 

level.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
37

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06260-137

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.7.5.1

Comment Excerpt Text:

p. 35183: Nevertheless, EPA solicits comment on whether EPA should modify the corrective 

action requirements under section 3004(x) of RCRA. Commenters should specifically address 

the issue of how other alternatives could be protective without mandating corrective action as 

needed for all solid waste management units from which there have been releases of hazardous 

waste or hazardous constituents at the facility.

The Commonwealth believes that existing programs will provide sufficient protection. 401 KAR 

48:300, Section 1 ofthe solid waste regulations states:

"Section 1. Applicability. The requirements of this administrative regulation apply to owners and 

operators of contained, construction/demolition, and residual landfills, Class II and Class III 

landfarming facilities, other solid waste sites or facilities at which the cabinet determines 

groundwater monitoring shall be required and solid waste sites or facilities required to 

accomplish corrective action as a result of documented groundwater contamination." (Our 

italics)

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

"Section 1. Applicability. The requirements of this administrative regulation apply to owners and 

operators of special waste landfills, Type A special waste landfarming or composting sites or 

facilities, other special waste sites or facilities at which the cabinet determines groundwater and 

surface water monitoring shall be required, and special waste sites or facilities required to 

perform corrective action as a result of documented groundwater contamination ..."

The phrase "solid waste sites or facilities" and "special waste sites or facilities" includes permitsby-rule, such as surface impoundments and temporary waste piles.
38

The Underground Storage Tanks Branch of the Division of Waste Management regulates 

releases from subterranean enclosures pursuant to 40 CFR 280. The Superfund Branch of the 

same agency regulates releases from surface tanks and all other releases of hazardous substances 

not specifically covered by another program.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06260-23

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 11.1

Comment Excerpt Text:

No. Even though the four materials vary somewhat in composition and properties, the group 

should be regulated together as coal combustion residuals. Kentucky treats the group of 

substances as "special wastes" and "utility wastes" pursuant to 401 KAR Chapter 45 and KRS 

224.50-760 which states:

"(1) (a) For purposes of this section and KRS 224.46-580(7), special wastes are those wastes of 

high volume and low hazard which include but are not limited to mining wastes, utility wastes 

(fly ash, bottom ash, scrubber sludge), wastes from coal gasification facilities (vitrified coarse 

solid residues, prilled or blocked sulfur) approved by the cabinet based on submittal of 

appropriate testing demonstrating that the wastes are of low hazard, sludge from water treatment 

facilities and wastewater treatment facilities, cement kiln dust, gas and oil drilling muds, and oil 

production brines. Other wastes may be designated special wastes by the cabinet; ..." (our 

italics).
39

For beneficial use purposes, the different properties of the materials would have to be considered 

by the project Professional Engineer. For example, fly ash is best used in cement production or 

other uses for its micro-sized properties, bottom ash is a good sandblast alternative and makes 

good roof tile granules; FGD is best in wall board while boiler slag is an excellent roadbase or 

structural fill material.

Response: The Agency acknowledges and appreciates the comment. As defined in the rule, 

the Agency is regulating CCR or coal combustions residuals. The commenter is referred to Units 

IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D 

rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred 

to Unit VI of the preamble for a presentation and discussion of the technical standards the 

Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of 

the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state 

solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06275-18

Organization1:Lansing Board of Water and Light (BWL) and Michigan State University 

(MSU)

Commenter1: Jeffrey L. Woolstrum

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

A. CCRs Are Expressly Regulated As “Solid Waste” Under Michigan’s Natural Resources And 

Environmental Protection Act.

Part 115 of Michigan’s Natural Resources and Environmental Protection Act (“Part 115”) 

[Footnote 5: M.C.L. § 324.11501 et seq.] and the administrative rules promulgated under that act 

(the “Part 115 Rules”) [Footnote 6: Mich. Admin. Code r. 299.4101 et seq.] impose a 

comprehensive regulatory scheme upon the collection, transportation, storage, processing, and 

disposal of all solid waste generated or disposed of in Michigan. Part 115’s definition of “solid 

waste” is similar to RCRA’s, i.e., “garbage, rubbish, ashes, incinerator ash, incinerator residue, 

street cleanings, municipal and industrial sludges, solid commercial and solid industrial waste, 

and [certain] animal waste.” [Footnote 7: M.C.L. § 324.11506(1).] Part 115 divides the universe 
40

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

construction and demolition waste; and (4) industrial waste. The “industrial waste” category, 

which includes all solid waste that is generated by manufacturing or industrial process or that 

otherwise originates from an industrial site, [Footnote 8 Mich. Admin. Code r. 299.4103(n). is 

further divided into two subcategories: low hazard industrial waste, and all other industrial 

waste. “Low hazard industrial waste,” which is defined generally as an industrial waste that has a 

low potential for groundwater contamination when managed in accordance with the Part 115 

Rules, expressly includes “coal ash,” [Footnote 9: Mich. Admin. Code r. 299.4103(x).] i.e., the 

“residue remaining after the ignition of coal, and may include “noncombustible materials, 

otherwise referred to as bottom ash,” and the “airborne residues from burning coal that are finely 

divided particles entrained in flue gases arising from a combustion chamber, otherwise referred 

to as fly ash.” [Footnote 10: M.C.L. § 324.11502(6).] Thus, because CCRs are expressly 

included in the definition of “solid waste,” Michigan’s comprehensive solid waste statutory 

program fully regulates the management and disposal of CCRs.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06280-13

Organization1:South Carolina Department of Health and Environmental Control

Commenter1:Daphne Neel

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As discussed in greater detail in the Department's cover letter, South Carolina has a 

comprehensive regulatory framework for the management of CCRs under the Department's 

existing authorities. 
41

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06280-3

Organization1:South Carolina Department of Health and Environmental Control

Commenter1:Daphne Neel

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2

Comment Excerpt Text:

This letter provides a general overview of South Carolina's current regulatory structure for 

CCRs, and why the Department believes it adequately addresses CCR management without the 

necessity of federal regulation. A more detailed document containing specific, technical 

comments on the proposed rule is attached and made a part of this letter. The technical 

comments address issues under both RCRA Subtitle C and D. While the Department does not 

support regulation under Subtitle C, technical comments on Subtitle C are included to illustrate 

some of the concerns and questions that have arisen in reviewing the proposed rule.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
42

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06280-5

Organization1:South Carolina Department of Health and Environmental Control

Commenter1:Daphne Neel

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

South Carolina currently regulates twelve coal-burning power plants that manage CCRs through 

the use of landfills, surface impoundments, and beneficial use determination. Each management 

strategy is discussed in more detail below.

Response: The Agency acknowledges and appreciates the comment. Because EPA is deferring 

its final Bevill Determination, EPA has not responded to comments that pertain exclusively to 

that issue. However EPA has responded to significant comments that relate to topics that are 

otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the 

damage cases to support certain aspects of the technical requirements, EPA has responded to 

comments relating to the accuracy of the facts involved in the damage cases. EPA has not, 

however, responded to many comments on state programs because the Agency has made no 

final conclusions on the adequacy of those programs and is not relying on state programs to 

support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2009-0640-06291-2

Organization1:Labadie Environmental Organization

Commenter1: Ginger Gambaro

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

I live in Missouri which is supposed to be one of the states with decent regulations. I can assure 

you there may be regulations on the books but they are not being enforced. My home is not far 
43

from a huge 2400 MG very dirty coal-fired power plant. They promote themselves as being good 

neighbors but they are far from good neighbors. In fact, EPA issued 4 NOV's in January of this 

year against Ameren Missouri. But we believed them until we knew better. Now we know we 

need federal oversight and strict guidelines that are standard and consistent across the entire 

country. 

Their ash ponds are leaking approximately 43000 gallons of toxic effluent PER DAY since 1992 

into the Missouri River. They and the MoDNR have done nothing to correct that. In addition, the 

plant spews between 25 MM and 45 MM gallons of toxic effluent into the mighty Missouri River 

everyday. There is no monitoring of toxins. And now they want to construct a 400 acre, 100 feet 

tall coal ash landfill in the floodplain of the Missouri River. Groundwater ranges from 2 - 10 feet 

below the surface. This is very frightening and even though they claim "state of the art" 

construction methods, I know that in 50 years, or 75 years, or even earlier, that landfill will leak 

or the Missouri River will flood (it is prone to big floods) and there will be a price to pay. It may 

not affect me in my lifetime or even my child's but it will affect somebody's life.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06298-33

Organization1:Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Tennessee has successfully implemented both the Subtitle C and Subtitle D programs. Tennessee 

has approximately fifty FTEs in its Subtitle Solid Waste Program and 65 FTEs in its Hazardous 

Waste Program. Tennessee has been authorized by EPA to implement the Hazardous Waste 

Program in-lieu of the RCRA Subtitle C Program and the state's Solid Waste program has been 

approved by EPA.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06298-34

Organization1:Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan
44

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 8.6

Comment Excerpt Text:

The December 2008 ash pond failure in Kingston, Tennessee was not due to a lack of regulations 

or the chemical properties of fly ash. The TVA Kingston failure was due to structural failure. 

TVA's investigation revealed that TVA was aware of the potential structural failure of the 

landfill via information from its employees and consultants. The TVA Office of Inspector 

General, July 23, 2009 report notes on page 4, "TVA was aware of 'red flags' that were raised 

over a long period of time signaling the need for safety modifications to the TVA ash ponds. 

These 'red flags' were raised by both TVA employees and consultants hired by TVA. 

Specifically, a 1985 internal memorandum written by a TVA engineer and two 2004 reports by 

external engineering consultants raised concerns about the stability of the Kingston ash storage 

facilities."

This information was not communicated to the regulatory agency. TVA's failure to report its own 

internal warnings about a pending failure of the landfill to the department did not allow the 

department to take the actions needed to prevent this incident. The failure of TVA to address 

these problems resulted in a spill with costs that may exceed $1.3 billion.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06298-41

Organization1:Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan

Commenter Type: State Government

Classification: Substantive

Comment Category:
45

Current Task: Examine Context Assigned/Due:

Other Sections: 8.1

Comment Excerpt Text:

The extent of damage cases, on a national level, appears relatively minimal when compared with 

both the quantity and the period of time CCRs have been generated. The extent of risks posed 

appears minimal based on the current regulatory methodology used by EPA to determine the 

release potential. Tennessee, like other states, has appropriate solid waste regulations in place for 

CCR management and disposal. The TVA Kingston landfill failure did not occur due to poor 

regulations but due to failure to acknowledge structural deficiencies and poor operation, 

particularly a properly operating drainage system.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06298-43

Organization1:Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Page 35133, Column 1:

“The Agency would implement similar technical controls under RCRA subtitle C or D. 

Therefore a central issue is the adequacy of State Programs.”

Since either option would be protective of health and the environment, there is clearly no 

technical or scientific justification to incur the higher expenses and much greater regulatory 

burden associated with the regulation of CCR under Subtitle C. Tennessee's current solid waste 

regulations already include most of the technical controls proposed except for those regarding 

surface impoundments. For the record, we regard the effectiveness of our solid and hazardous 

waste regulatory programs as equally effective as the equivalent portions of the federal 

environmental programs.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
46

Comment Number: EPA-HQ-RCRA-2009-0640-06305-3

Organization1:Clean Water Network

Commenter1:Natalie Roy

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 6.1.1

Comment Excerpt Text:

State regulation now is minimal or not existent. Some states do require monitoring of 

contaminated leachate that may be leaving the site. Every one of the coal ash dump sites within 

the August 2010 study, equipped with groundwater monitoring wells, found concentrations of 

heavy metals such as arsenic and lead exceeding the standards. Therefore it is likely that the 

number of polluted sites nationwide exceeding federal health-based standards is significantly 

higher.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06307-3

Organization1:Alaska Community Action on Toxics, et al.

Commenter1:Sarah B. Petras

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 8.7 6.1.1 3.1.1

Comment Excerpt Text:

In Alaska’s Interior, coal combustion waste has been disposed of with virtually no restrictions 

for decades. At the urging of Alaskan residents living near coal ash disposal sites, a public health 

advocacy organization commissioned an independent analysis of coal ash samples collected in 

Fairbanks, Alaska. The results of this coal ash analysis (“Coal Ash in Alaska: Our Health, Our 

Right to Know”) found in almost every case that the levels of toxic chemicals were much higher 

than background soil samples from Fairbanks. In the coal ash samples, levels of arsenic and 

vanadium were found at concentrations that may harm human health. Two samples from the 

University of Alaska Fairbanks coal-fired power plant show arsenic concentrations more than 

100 times higher than the standard for residential soils set by the EPA. Furthermore, mercury 

was found at levels 70 times higher than background soils, and at levels high enough to be a 

potential concern if inhaled in the form of windblown dust. 
47

This is a matter of protecting public health. Adverse health effects associated with exposure to 

arsenic, vanadium, and mercury include cancer, neurological problems, and developmental 

defects. In order to keep our communities safe and healthy we need to be sure these hazardous 

chemicals from coal ash do not end up in our neighborhoods. However, Alaskans are currently 

surrounded by these toxics on university land, in public spaces, and throughout residential 

neighborhoods. 

Because the coal ash produced in Fairbanks contains higher levels of toxic chemicals than 

background soil, it should not be considered "inert" as is currently the case (“Coal Ash in 

Alaska: Our Health, Our Right to Know”). Without regulatory improvements, existing waste 

disposal and reuse practices in Alaska will continue indefinitely. Thus the undersigned 11 public 

interest organizations, representing several thousand Alaskans, respectfully ask the EPA to 

enforce "Subtitle C" to protect US citizens and their environments from hazardous coal ash.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06313-86

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.2

Comment Excerpt Text:

This survey indicates that some states have regulations already in place, but also indicates that 

other states have few or no regulations for CCR disposal. This patchwork of regulations strongly 
48

suggests that a more uniform approach under Subtitle C is needed. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06315-17

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

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

Supports the Need for Federal Standards under Subtitle C of RCRA.

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

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

Subtitle C of RCRA. [Footnote 68: 75 Fed. Reg. at 35,133.] As discussed below, the glaring 

inadequacies of state regulatory authority make mandatory federal standards imperative for the 

protection of human health and the environment. Indeed, EPA’s own reports have documented 

extensive deficiencies in state regulation of coal ash landfills and surface impoundments. 

Following EPA’s request for comments, we conducted a comprehensive evaluation of the current 

landscape of state regulation of CCR disposal. Our analyses identify additional significant gaps 

in state programs, buttress EPA’s data that indicate state programs are inadequate to protect 

health and the environment, and further demonstrate why regulation under subtitle C is necessary 

to guarantee the safe disposal of CCR nationwide. 

a. EPA’s Own Reports Document the Substantial Gaps Persisting in State Regulatory 
49

Programs.

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

adequate state regulation of CCR disposal. [Footnote 69: 65 Fed. Reg. at 32,218.] A decade later, 

many of the identified regulatory gaps persist. Two EPA reports completed after the 2000 

Regulatory Determination detail such continuing substantial deficiencies, finding that state 

regulations routinely lack requirements for essential safeguards for the disposal of CCR in 

landfills and surface impoundments. [Footnote 70: See DPRA Inc., Estimation of Costs for 

Regulating Fossil Fuel Combustion Ash Management at Large Electric Utilities Under Part 258 

(Nov. 30, 2005), available at www.regulations.gov (Document ID No. EPA-HQ-RCRA- 2006-

0796-0469) [hereinafter 2005 DPRA Report]; Dep’t of Energy and EPA, Coal Combustion 

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

at www.regulations.gov (Document ID No. EPA-HQ-RCRA-2006-0796-0002) [hereinafter 2006 

DOE/EPA Report].] In April of this year, EPA updated its state regulatory analysis in the 

“Regulatory Impact Analysis.” [Footnote 71: Office of Res. Conservation & Recovery, U.S. 

EPA, Regulatory Impact Analysis for EPA’s Proposed RCRA Regulation of Coal Combustion 

Residues (CCR) Generated by the Electric Utility Industry (Doc. No. EPA-HQRCRA-2009-

0640-0003) (Apr. 2010), available at www.regulations.gov [hereinafter 2010 RIA]).] The 

findings of these reports, as well as our recent analyses of state regulatory deficiencies, provide a 

solid basis for regulation of coal ash under Subtitle C of RCRA.

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

shocking absence of CCR disposal requirements across the nation. The report updated the 2005 

DPRA Report’s examination of the regulatory programs of 34 states; both reports found basic 

safeguards for CCR disposal seriously lacking. Among the key findings of the 2010 RIA: 

[Footnote 72: 2010 RIA, at Appendix E, Baseline State Government Regulatory Requirements 

for CCR Disposal Units in Top34 Coal Utility States.]

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

at all surface impoundments (both new and existing).

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

ash surface impoundments.

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

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

impoundments.

- 38 percent of the states surveyed do not require groundwater monitoring at all landfills (both 

new and existing).

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

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

assurance for coal ash landfills.

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

also documented continuing substantial deficiencies in state regulation of CCR management. The 

report found that between 1999 and 2005 none of the states surveyed tightened regulatory 

controls on CCR landfill disposal; that is, no state added specific requirements governing liners, 

groundwater monitoring, leachate collection, closure and postclosure, siting, and financial 
50

assurance since the 2000 Regulatory Determination. [Footnote 73: 2006 DOE/EPA Report, Table 

22.] In addition, the report identified four states (Alabama, Florida, Illinois, and Texas) that had 

relaxed certain CCR disposal controls since 1988. [Footnote 74: Id. The 2006 DOE/EPA Report 

also identifies nine states that reportedly tightened certain regulatory controls since 1988. 

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

Determination.] According to the EPA, [Footnote 75: 2010 RIA, Ex. 3D.] these four states 

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

total CCR generation in 2005. [Footnote 76: All references to percentage of total CCR in the 

U.S. are based on 2005 CCR generation data presented in Exhibit 3D of the 2010 RIA. In 2005, a 

total of 141.2 million tons of CCR was generated in the U.S. The top ten generators of CCR in 

2005 were Pennsylvania, Texas, Ohio, West Virginia, Kentucky, Indiana, Florida, Georgia, 

North Carolina, and New Mexico).]

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

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

authority to permit CCR landfills and surface impoundments. Of the 11 states evaluated, five 

exempted CCR landfills from solid waste permitting requirements. Alabama excludes all CCR 

from its definition of solid waste; thus, solid waste permits are not required for CCR disposal. 

Similarly, Ohio exempts the large majority of its CCR by classifying it as “nontoxic,” and 

landfills at which nontoxic CCR is disposed do not require solid waste permits. Florida, Illinois, 

and Texas all exempt on-site disposal of CCR from solid waste permitting requirements. Because 

EPA estimates that 70 percent of CCR disposal involves company on-site disposal, the 

exemption of on-site units from permitting creates a significant gap. [Footnote 77: 75 Fed. Reg. 

35,128, 35,158.] These five states generated 36.8 million tons of CCR in 2005—over 26 percent 

of the total CCW generated in the United States that year. The report identifies an additional 

three states (Colorado, Maryland, and Utah) that exempt on-site CCR landfills from state solid 

waste permitting requirements. [Footnote 78: 2006 DOE/EPA Report, tbl. 20.] In addition, the 

report only identified one state (Pennsylvania) that required solid waste permits for all surface 

impoundments receiving CCR. [Footnote 79: Id. at A-18.] Based on these exemptions and 

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

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

requirements. [Footnote 80: Id. at 46. EPA acknowledges this significant regulatory gap as part 

of the discussion of existing state regulatory oversight in the preamble to its proposed rules. 75 

Fed. Reg. at 35,151.] While the 2006 DOE/EPA Report points to other types of permits that may 

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

permits), [Footnote 81: Id. tbl. 9.]these are no substitute for a solid waste operating permit, 

without which the dangers posed by the mismanagement of coal ash are likely to have a 

significant negative impact on human health and the environment.

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

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

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

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

DOE/EPA Report found that:

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

A.6.]
51

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

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

[Footnote 84: Id. tbl. A.13.]

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

landfill. [Footnote 85: Id.]

- 5 of the 11 states surveyed do not require leachate collection systems at coal ash landfills. 

[Footnote 86: Id. tbl. A.15.]

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

[Footnote 87: See Office of Solid Waste & Emergency Response, EPA, Human and Ecological 

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

Assessment].] revealed even more significant gaps in state regulatory authority: 

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

impoundments. [Footnote 88: 2006 DOE/EPA Report, tbl. A.4.]

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

impoundments. [Footnote 89: Id. tbl. A.13.]

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

impoundments. [Footnote 90: Id. tbl. A.15.]

- Only one of the states surveyed requires corrective action for coal ash surface impoundments. 

[Footnote 91: Id. tbl. A.19(only the five pilot states were surveyed for corrective action 

requirements).]

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

impoundments. [Footnote 92: Id. tbl. A.22. (only the five pilot states were surveyed for financial

assurance requirements).]

- Only three of the states surveyed require liners at coal ash surface impoundments. [Footnote 93: 

Id. tbl. A.6.]

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

restricting their distance from public water supply wells, other potable water supplies, inhabited 

dwellings, floodways, wetlands, and the groundwater table. [Footnote 94: Id. tbl. A.20 (only the 

five pilot states were surveyed for siting restrictions).]

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

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

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

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

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

ponds, and only 31 percent of the states require financial assurance for coal ash ponds. [Footnote 

95: Association of State and Territorial Solid Waste Management Officials (ASTSWMO) Survey 

(Feb.–Mar. 2009), (Docket ID No. EPA-HQ-RCRA-2009-0640-0025), available at 

www.regulations.gov.] It is not clear from the ASTSWMO survey how many states responded, 

so these percentages may, in fact, overestimate the number of states that have regulatory 

safeguards.

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

As troubling as the regulatory deficiencies in EPA’s reports are, a more comprehensive analysis 
52

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

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

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

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

practices and State application of environmental regulations appear to be occurring” [Footnote 

96: Id. at 67] is based largely on self-survey data from a narrow sample of permitted new or 

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

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

[Footnote 97: 75 Fed. Reg. 35,128, 35,151.] In addition, even if it can be assumed that the new 

permitted units described in the 2006 DOE/EPA Report are an indication of future disposal 

practices—which is questionable—it is clear that the problem of CCR mismanagement is far 

from solved.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06315-19

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

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

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

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

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

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

approximately 50.1 million tons of CCR were beneficially reused and 10.5 million tons were 
53

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

[Footnote 100: 75 Fed. Reg. at 35,151.] Thus, well over half of all CCR generated in the United 

States is potentially exempt from solid waste regulation, either excluded completely from 

regulation (as in Alabama) or excluded by virtue of its future beneficial reuse.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06315-20

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.3.1

Comment Excerpt Text:

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

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

the inadequacy of state regulations by ignoring exemptions from and opportunities for variance 

of state regulatory requirements and by failing to distinguish between the mandatory requirement 

of essential safeguards and state standards that are merely discretionary. For example, the 2010 

RIA’s survey of “Baseline State Governmental Regulatory Requirements for CCR Disposal Units 

in Top-34 Coal Utility States” [Footnote 101: 2010 RIA, Appendix E] ignores the fact that 

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

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

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

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

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

regulations found that at least 13 states allow state regulators to grant variances from or waivers 
54

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

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

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

CCR disposal requirements, of which 47 were granted by state regulators [Footnote 102: 2006 

DOE/EPA Report, tbl. 23.] Nevertheless, the 2010 RIA ignores this distinction, thereby allowing

for gross exaggerations of the scope and effectiveness of state programs.

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

that they subsequently grant may significantly compromise the safety of a waste disposal unit. 

For example, West Virginia regulators waived the liner requirement for a leachate collection 

pond at two facilities, [Footnote 103: Id. at 57.] cover requirements at two structural fill sites, 

and allowed the construction of a landfill over an underground mine. [Footnote 104: Id. at 66.] 

Indiana regulators allowed the use of ash as a liner and cover at three facilities and waived the 

cover requirement at a second landfill. [Footnote 105: Id. at 58.] Georgia regulators waived 

entirely the leachate collection and treatment during the post-closure care period and daily cover; 

[Footnote 106: Id.] and Ohio regulators waived the cover requirements on two FGD sludge 

ponds. [Footnote 107: Id at 59.] These variances reveal that when state law gives regulators 

discretion to waive basic safeguards such as liners and cover, the states use that discretion 

liberally.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06315-21

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
55

Comment Excerpt Text:

c. State Programs Are Incapable of Adequately Regulating the Disposal of Coal Ash.

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

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

place to regulate CCRs and the extent to which such requirements apply to older, existing units. 

We have reviewed the regulatory programs of 37 states, looking specifically at whether states 

have imposed requirements to address: (1) groundwater monitoring; (2) unit liners; (3) leachate 

collection systems; (4) financial assurance; (5) post-closure monitoring and maintenance; and (6) 

extent of permitting requirements—issues EPA has identified as having particular relevance to 

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

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

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

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

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

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

RCRA for the safe disposal of CCR.

[see original comment for Table 1: Overview of Mandatory State Requirements for CCR 

Disposal; organized by requirement and applicability to landfills and surface impoundments]

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

widespread absence of mandatory basic safeguards. For example: 

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

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

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

monitoring at all new and existing surface impoundments; 

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

for all new landfills; and 

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

liners for all new surface impoundments. 

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

country have no or nearly no coal ash regulatory programs. As described above, three states—

Alabama, New Mexico, and Utah [Footnote 109: Ala. Admin. Code r. 335-13-1-.03(12) (2010); 

N.M. Code § 20.9.2.7(S)(9) (2010); Utah Admin. Code r. § 19-6-102(18)(b)(iii).] —exempt coal 

ash completely from regulation as a solid waste, leaving the disposal of CCR virtually 

unregulated. In addition, Ohio excludes virtually all CCR from regulation by classifying it as 

“nontoxic” and, therefore, exempt. [Footnote 110: Ohio Admin. Code 3745:27-01(S)(23) 

(2010).] Texas excludes all coal ash that is disposed of on-site (defined as anywhere within 50 

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

CCR) from regulation [Footnote 111: 30 Tex. Admin. Code §§ 335.2(d); 335.1(138)(H) (2010).] 

In these states, which together generate approximately 33.4 million tons of CCR each year 

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

groundwater monitoring that EPA recognizes as necessary are required. 
56

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06315-27

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.3.1

Comment Excerpt Text:

d. The Results of EPA’s Analyses of State Regulations Differ from New Findings Presented 

by Commenters.

EPA’s 2010 RIA purports to summarize the baseline state requirements for CCR landfills and 

surface impoundments. [Footnote 118: 2010 RIA, Appendix E.] However, because the 

requirements outlined for certain states do not apply to all CCR disposal units in said states, such 

requirements fail to represent a baseline. Where a state requires groundwater monitoring at 

landfills, but exempts from such requirements those units that are located on-site at a power 

plant, it would be inaccurate to characterize groundwater monitoring at landfills as a minimum 

requirement. A regulatory baseline exists only where all units must meet certain minimum 

requirements. Thus, the “minimums” listed in Appendix E to the 2010 RIA are more properly 

characterized as potential requirements— standards that might or might not apply to any 

particular disposal unit.

The yes/no dichotomy utilized in Appendix E both overstates and oversimplifies regulatory 

requirements for the 34 state programs it attempts to summarize. For example, Exhibit E1 

answers “Yes” for whether groundwater monitoring of CCR landfills is required in Colorado. 

While some landfills in Colorado may in fact require such monitoring, where CCR is disposed of 

on-site, Colorado’s waste management regulations do not require groundwater monitoring. 
57

[Footnote 119: 6 CO ADC 1007-2:1-1.4(1).] In addition, and as discussed infra in section 

III.B.1.e., EPA’s yes/no assignments in Appendix E do not take into account the many states that 

allow for variance of regulatory requirements. Such oversimplifications are made with respect to 

the majority of states programs assessed in the 2010 RIA. Thus, EPA vastly overestimates the 

adequacy of current state regulation of CCR disposal.

Our independent review of state regulatory authority reveals that the actual “baseline” of state 

regulation of CCR disposal is woefully inadequate. The following discussion and side-by side 

comparison of the discrepancies between EPA’s characterization of baseline state regulatory 

requirements and our analysis of such requirements demonstrates the shortcomings of the 2010 

RIA’s assessments as well as the lack of the minimum requirements necessary for the safe 

disposal of CCR.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06315-41

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

3. Proliferation of Disposal Units Constructed and Operated without the Basic Safeguards 

Necessary to Prevent and Detect the Release of Contaminants. 

The failure of states to require basic safeguards has resulted in the proliferation of disposal units 

constructed and operated without the basic safeguards necessary to prevent and detect the release 

of contaminants. 
58

a. Present Disposal Practices: Disposal Units Continue to Display a Lack of Basic 

Safeguards. 

As EPA indicates in the preamble, many coal ash disposal units, particularly surface 

impoundments, lack liners and groundwater monitoring systems. The 1999 Report to Congress 

reported that 74 percent of the surface impoundments and 43 percent of the landfills constructed 

before 1995 had no liners or soil-only liners and that 62 percent of the surface impoundments 

and 15 percent of the landfills lacked groundwater monitoring. [Footnote 183: 65 Fed. Reg. 

32,216.] Because these data were based on a voluntary industry survey of 181 facilities (less than 

a third of the operating disposal units) conducted by the Electric Power Research Institute, it is 

likely that the controls were overestimated when applied to the entire universe of disposal units. 

[Footnote 184: 2010 Risk Assessment, at 1-2 (citing Electric Power Research Institute (EPRI) 

Comanagement Survey).] Another voluntary survey by the Utility Solid Waste Activities Group 

of 56 permitted units constructed or expanded between 1995–2004, revealed a much higher 

usage of liners and groundwater monitoring, but the data do little to change the percentage of 

units with basic controls since the new permitted units constitute less than 5 percent of the 

universe of operating landfills and impoundments. [Footnote 185: EPA & U.S. Dep’t of Energy, 

Coal Combustion Waste Management at Landfills and Surface Impoundments, 1994-2004, 

DOE/PI-0004, 2006 at 31-36.] 

There is no reason to expect a dramatic improvement in the overall picture of basic controls at 

coal ash disposal sites. As described in section III.B.1.c of these comments, supra, most states 

still do not require the installation of liners and groundwater monitoring and other basic 

safeguards. In fact, to reiterate, approximately 76 percent of the coal ash currently generated in 

the United States is managed in states that do not require groundwater monitoring at either 

existing or new surface impoundments. Monitoring of groundwater around CCR disposal unit is 

the single most important safeguard to prevent the poisoning of drinking water sources from the 

deadly constituents in CCR. But other critical safeguards are missing as well at a majority of coal 

ash disposal units. EPA in its preamble describes some of the available data. The docket contains 

additional detailed data concerning surface impoundments, informed by the response of utility 

companies to EPA’s information request letters. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06315-5

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:
59

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

o State Regulations are Grossly Deficient in the Majority of States

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

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

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

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

floodplains.

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

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

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

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

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

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

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

than is contained in EPA’s analyses.

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

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

landfills that contaminate groundwater outside their perimeter as “open dumps” that must be 

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

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

consequence, and without serious corrective action.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.
60

Comment Number: EPA-HQ-RCRA-2009-0640-06316-3

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

[Copy of November 2007 report prepared by Plains Justice: "Iowa Coal Combustion Waste 

Disposal]

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06340-2

Organization1:Alaska Community Action on Toxics (ACAT)

Commenter1: Pamela K. Miller and Sarah B. Petras

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 8.7 6.1.1

Comment Excerpt Text:

Health Concerns

For decades, coal-fired power plants have dumped their coal ash into unlined ponds and landfills, 

resulting in dozens of polluted drinking water supplies and spills into our rivers and streams. 

Communities across the country are routinely put at an elevated risk of cancer, organ damage 

learning disabilities, birth defects and other illnesses due to coal ash contamination. 
61

In Alaska, coal ash has been disposed of with minimal restrictions for decades, and reuse of coal 

ash has been encouraged because of the sheer quantity of this material. Alaskans have been 

repeatedly assured by industry and regulatory agencies that coal ash is a non-toxic substance that 

is safe to use throughout the community and at home—even in garden soil. Such widespread use 

of a hazardous material may pose serious health risks, yet there is no publicly available, up-todate information on what is in Alaska’s coal ash.

In June 2010, at the request of concerned local residents, a sampling project was conducted in the 

Fairbanks area in an effort to determine the composition of Alaska’s coal ash and whether it may 

be hazardous to public health. Researchers collected samples from sources of coal ash and sites 

with disposed and reused coal ash, such as residential fill piles and road surfacing areas of 

concern to local citizens. The samples were analyzed for a range of metals, and preliminary 

findings show that numerous toxic elements are present in Fairbanks, AK coal ash. All of the 

coal ash samples contained detectable levels of the elements aluminum, antimony, arsenic, 

barium, cadmium, cobalt, chromium, manganese, mercury, nickel, thallium, uranium, vanadium, 

and zinc. Most concerning, levels of arsenic and vanadium were found at concentrations that 

may harm human health.

Coal ash is extremely hazardous, yet currently it is less strictly controlled than household 

garbage. The EPA must adopt enforceable, federal safeguards, not suggested guidelines that will 

protect our communities.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06355-6

Organization1:Birchwood Power Partners, L.P.

Commenter1: Julie Caiafa

Commenter Type: Electric Utility Facility

Classification: Substantive
62

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

• Virginia operates a solid waste management program that complies with RCRA Subtitle D and 

the state has successfully regulated CCRs as an industrial waste under the state program. 

Birchwood agrees with the VDEQ that the state has a strong solid waste program that has 

successfully regulated coal ash Virginia.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06356-4

Organization1:U.S. Chamber of Commerce

Commenter1: William L. Kovacs

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

IV. State Regulation Is Protective Of Health And The Environment.

A. The U.S. Chamber supports smart and efficient State regulation of CCR disposal sites. We 

concur with the States that argue first that the data does not clearly demonstrate CCRs pose a 

threat to human health and the environment, and second that current regulatory programs are 

sufficient.
63

B. As EPA notes:

In September 2008, the Environmental Council of the States (ECOS) issued a resolution...a 

federal regulation is not necessary. The 2008 ECOS resolution was revised in March 2010 and 

calls upon EPA to conclude that additional federal CCR regulations would be duplicative of most 

state programs, are unnecessary, and should not be adopted. See 75 Fed. Reg. at 35143-144.3 

EPA fails to describe or addresses the specific bases of the States’ contention that federal 

regulation is unnecessary. Instead, EPA claims federal regulation is needed to “address the many 

problems that have occurred, and are likely to occur in the future.” See 75 Fed. Reg at 35221. 

However, the record is bare of facts demonstrating that “problems”, however defined, are 

“likely”, however defined, to occur in the future. EPA further claims it “does not believe that 

[State regulation] is at all acceptable, and that national regulations...needs (sic) to be 

promulgated.” Id. Yet, this claim too is entirely unsupported 3 See LINDA LUTHER, 

CONGRESSIONAL RESEARCH SERVICE, REGULATING COAL COMBUSTION WASTE 

DISPOSAL: ISSUES FOR CONGRESS, 20 (2010)(describing State regulators’ concerns 

regarding EPA’s proposed CCR rules). by citations to the record. See 75 Fed. Reg. at 35159. 

Therefore, EPA has failed to demonstrate the evidence supports expanded federal powers and 

more federal regulation

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06360-15

Organization1:ARIPPA

Commenter1: Jeff A. McNelly

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 12.1.1.4 4.1.1

Comment Excerpt Text:
64

EPA has often stated that its regulations must be based on “sound science.” The experience of 

states like Pennsylvania that have longstanding and sophisticated regulatory programs for the 

beneficial use of CCPs, as well as the recommendations of the National Research Council 

Committee on Mine Placement of Coal Combustion Wastes, provides a sound scientific basis for 

regulating the management and beneficial use of CCPs under Subtitle D of RCRA. These 

proposed regulations should not be used as a pretext for a policy decision further limiting 

coalfired generation of electricity in the absence of an express Congressional directive.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06360-56

Organization1:ARIPPA

Commenter1: Jeff A. McNelly

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In 2009-2010 The Environmental Council of the States (ECOS) wrote to EPA stating the 

following:

“ECOS Agrees with U.S. EPA’s finding in the 2005 study previously cited that “the regulatory 

infrastructure is generally in place at the state level to ensure adequate management of these 

wastes” and believes that states should continue to be the principal regulatory authority for 

regulating CCW as they are best suited to develop and implement CCW regulatory programs 

tailored to specific climate and geological conditions designed to protect human health and the 

environment; 
65

Believes that the adoption and implementation of a federal CCW regulatory program would 

create an additional level of oversight that is not warranted, duplicate existing state regulatory 

programs, and require additional resources to revise or amend existing state programs to conform 

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

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06360-57

Organization1:ARIPPA

Commenter1: Jeff A. McNelly

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1

Comment Excerpt Text:

Therefore ECOS calls upon U.S. EPA to conclude that additional federal CCW regulations 

would be duplicative of most state programs, are unnecessary, and should not be adopted, but if 

adopted must be developed under RCRA Subtitle D rather than RCRA Subtitle C, and calls upon 

U.S. EPA to begin a collaborative dialogue with the states to develop and promote a national 

framework for beneficial use of CCW including use principles and guidelines, and to accelerate 

the development of markets for this material.”

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
66

The commenter is referred to Unit IV of the preamble for a discussion on our decision to 

regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a 

complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06360-58

Organization1:ARIPPA

Commenter1: Jeff A. McNelly

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As ECOS concludes, the states have devised effective regulatory schemes for managing coal 

combustion residuals in accordance with state-based regulatory schemes promulgated in 

accordance with Subtitle D.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06384-9

Organization1:Public Utilities Commission of Ohio

Commenter1: Rebecca L. Hussey

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2

Comment Excerpt Text:
67

The Ohio EPA has successfully administered CCR facility oversight and enforcement over the 

years. As such, the PUCO does not believe that any regulation of CCRs under RCRA Subtitle C 

is warranted. The PUCO feels that it is prudent and necessary to take these potential 

circumstances into account when considering any final rule on the regulation of CCRs. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06388-2

Organization1:Louisiana Public Service Commission

Commenter1: Eve Kahao Gonzalez

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1 10.1.1

Comment Excerpt Text:

I understand that numerous State environmental agencies have already expressed their opposition 

to the regulation of CCRs under RCRA's hazardous waste rules, arguing that CCRs should 

instead be regulated as non-hazardous waste under RCRA Subtitle D. The States have taken this 

position because regulation as non-hazardous waste would preserve and expand the beneficial 

use of CCRs, and because the States already have the regulatory infrastructure in place to ensure 

the safe management of these materials. Furthermore, CCRs exhibit no hazardous characteristics, 

and regulation of these materials as "hazardous" would prevent the beneficial uses of the material 

due to the stigma that would attach.

The Commission believes the same to be true for Louisiana. As Louisiana Department of 

Environmental Quality ("LDEQ") Secretary Harold Leggett noted in correspondence to you 

dated May 29, 2009:
68

"The LDEQ has successfully regulated [coal combustion waste ("CCW")] by regulation since 

1983. Current EPA regulations do not provide standards for managing and disposal of industrial 

solid waste such as CCW. However, the LDEQ has developed an industrial solid waste program 

and has promulgated regulations based upon LDEQ's EPA-approved municipal landfill 

regulations.

The data we have seen indicates that CCW would not qualify as characteristic hazardous waste 

under RCRA Subtitle C. Levels of toxic constituents and permeability are both very low. 

Nevertheless, Louisiana's regulations require that landfills that accept CCW must have liners and 

groundwater monitoring. All available soil, groundwater and surface monitoring data show that 

our current regulatory scheme is fully protective of those media.

Regulating CCW under RCRA Subtitle C would provide no clear advantages to Louisiana's solid 

waste or hazardous waste programs that cannot be accomplished under a RCRA Subtitle D 

regulatory approach. On the contrary, regulation of CCW under RCRA Subtitle C would 

needlessly complicate Louisiana's existing programs and increase costs to the regulated 

community. Under Louisiana law, hazardous waste and nonhazardous solid waste are distinct 

types of wastes. A federal hybrid approach that would designate a CCW a hazardous waste, but 

allow it to be managed at a solid waste disposal facility, would conflict with Louisiana law.

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

replacing Portland cement. This use avoids the emission of carbon dioxide that would result from 

the production of Portland cement."

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

The commenter is also referred to Unit IV of the preamble for a discussion on our decision to 

regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a 

complete discussion of the beneficial use aspects of the rule. 
69

Comment Number: EPA-HQ-RCRA-2009-0640-06398-4

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Any Subtitle D regulatory program for CCR, however, must include a mechanism for the 

administration and implementation of Subtitle D rules by the states. As EPA itself has concluded, 

many states already have well-established and protective regulatory controls for CCR.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect 

states to incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06398-68

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.7

Comment Excerpt Text:

Duke Energy supports a Subtitle D program that will involve groundwater monitoring controls 

specifically designed to detect any contamination from the CCR waste management units before 

any contamination potentially moves off-site. If Duke Energy determines an impact to 

groundwater has occurred at one of its facilities, the appropriate federal and/or state regulatory 

agency is notified. Duke Energy then works with those regulators in determining the appropriate 

steps to be taken to mitigate any impact to groundwater. Duke Energy has been involved and 

worked with the North Carolina Department of Environment and Natural Resources, Indiana 

Department of Environmental Management, Ohio EPA, and Kentucky Department of 

Environmental Protection in determining the appropriate remediation steps to be taken when an 

impact to groundwater has been detected. Further, Duke Energy has taken measures to help 

reduce or eliminate any potential future groundwater impacts at other Duke Energy facilities. 

Duke Energy has voluntarily initiated groundwater monitoring around active CCR surface 

impoundments used to dispose of coal ash in all of the states in which it operates. The 

involvement and interaction that Duke Energy has with the various regulatory agencies in the 

states in which it operates demonstrates how a state-implemented, non-hazardous waste program 
70

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

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

as well as the technical criteria for these units that is discussed in Unit VI. The commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans.

Comment Number: EPA-HQ-RCRA-2009-0640-06411-11

Organization1:Alabama Department of Environmental Management (ADEM)

Commenter1: Gerald Hardy

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1 7.4.1

Comment Excerpt Text:

It is our firm contention that Alabama's solid waste program is more than sufficient to adequately 

implement the regulatory requirements in the proposed Subtitle D option. While there may be 

resource issues that come to bear related to the potential increase in workload due to this 

proposed option, the same concerns would exist with the Subtitle C option. In fact, as stated 

earlier, the demands for State implementation of the Subtitle C option would be even more 

taxing on our existing resources. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

as well as the technical criteria for these units that is discussed in Unit VI. The commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06415-1

Organization1:The Virginia Coal Association, Inc. (VCA)

Commenter1: John T. Heard

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.3

Comment Excerpt Text:

Virginia's Regulation of Coal Ash Disposal and Reuse
71

Coal mined in Virginia is used in the steel manufacturing process or burned to generate 

electricity. Virginia coal is burned by a number of power plants located in our state. The 

recycling/reuse or disposal of coal combustion residuals (CCRs) that are generated by these 

power plants is governed by a comprehensive coal combustion waste regulatory program 

administered by the Virginia Department of Environmental Quality (DEQ). The Virginia Solid 

Waste Management Regulations (VSWMR) set out criteria that must be complied with by 

facilities that store, treat, or dispose of solid waste. Facilities that dispose of coal combustion 

waste (CCW) in a landfill are required to meet the industrial landfill provisions of the VSWMR, 

to obtain a permit in accordance with those regulations, and are subject to regular inspection by 

solid waste compliance staff. These industrial landfill requirements provide standards for siting, 

design, operation, monitoring, closure, and post-closure of the landfill. The VSWMR also allow 

for certain exclusions and exemptions from CCW's regulation as a solid waste when the material 

is beneficially reused (i.e., when used in manufacturing of products, used as base/sub-base fill 

under footprint of road, building, or other structure, and other uses as excluded/exempted by this 

regulation). Additionally, Virginia has a separate regulation, the Coal Combustion By-Products 

Regulation, which provides regulatory criteria for the use, reuse, or reclaiming of these materials 

by applying them to or placing them on land in a manner other than addressed in the VSWMR.

Coal combustion by-products (CCB) are defined as residuals, including fly ash, bottom ash, 

boiler slag, and flue gas emission control waste produced by coal-fired electrical or steam 

generating units. CCW's managed within surface impoundments and lagoons arc regulated under 

state water control laws. These units are permitted and inspected under Virginia's water program.

As DEQ's Director David Paylor noted in his September 30, 2009 letter to you, "our regulations 

provide requirements for coal ash management as a solid waste, including appropriate criteria for 

disposal units. These regulations also allow for its beneficial reuse in a manner that is protective 

of human health and the environment. Virginia, like many states, has a strong solid waste 

management program. Our solid waste statutes include enforcement authorities, as was 

demonstrated to EPA when we obtained approval for our municipal solid waste program (a 

RCRA subtitle 0 program). Virginia has an ongoing process to evaluate its Subtitle D program 

including regulations that allow for the beneficial use of waste materials. We are committed to 

continuously improving the process." In fact, the DEQ has continuously reviewed and updated 

Virginia's Coal Combustion By-Product Regulations since their initial promulgation in the early 

1990's to ensure their effectiveness. The most recent review took place in 2009.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

as well as the technical criteria for these units that is discussed in Unit VI. The commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
72

Comment Number: EPA-HQ-RCRA-2009-0640-06416-23

Organization1:Wisconsin Department of Natural Resources (WI DNR) and Public Service 

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.7.5

Comment Excerpt Text:

We do not believe that the RCRA corrective action program is needed at Wisconsin utility 

locations. Wisconsin has sufficient regulatory authority to remediate sites under our Waste and 

Materials Management program and our Remediation and Redevelopment program. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

as well as the technical criteria for these units that is discussed in Unit VI, in particular the 

discussion on groundwater monitoring and corrective action requirements. The commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06418-6

Organization1:Virginia Independent Power Producers, Inc. (VIPP)

Commenter1: August Wallmeyer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Enhancements to CCR Regulations are Best Left to the States; Virginia’s CCR Regulatory 

Framework has Proven Effective and Protective of Human Health and the Environment

VIPP strongly agrees with the Virginia Department of Environmental Quality, (DEQ) that any 

required improvements to the regulatory management of CCRs are best left to the individual 

states. Like DEQ, VIPP believes that regulation under Subtitle C would be inappropriate and 

unwise.

Virginia's solid waste management program is protective of the environment and human health 

and complies with RCRA Subtitle D. The Virginia program has an extremely successful record 

of regulation of CCRs in the Commonwealth.
73

Virginia's program has consistently demonstrated the ability to conduct an effective compliance 

and enforcement program, as affirmed by EPA’s feedback during the State Review Framework 

process. Simply stated, there is no need or justification for disrupting an active ongoing, effective 

CCR regulatory apparatus in Virginia

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

as well as the technical criteria for these units that is discussed in Unit VI. The commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06422-7

Organization1:Dynegy Inc

Commenter1: Ben C. Trammell

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.2

Comment Excerpt Text:

Additionally, more stringent state program requirements must still be met. Indeed, Subtitle C 

regulation arbitrarily ignores that recently constructed surface impoundments and landfills are 

lined and may have leachate collection systems due to state requirements. For example, Dynegy's 

Danskamrner facility landfills CCRs not beneficially reused in an onsite double-lined landfill 

that is subject to stringent New York State Department of Environmental Conservation 

requirements, including leachate collection, groundwater monitoring and permitting. Similarly, 

since the early 1990's Dynegy has constructed surface impoundments at four of its 1llinois 

facilities with each of these impoundments lined and subject to Illinois Environmental Protection 

Agency groundwater monitoring requirements.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

as well as the technical criteria for these units that is discussed in Unit VI. The commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06424-10

Organization1:Garrett & Moore, Inc.

Commenter1: Bernie Garrett

Commenter Type: Other Company

Classification: Substantive
74

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.7 7.4.2

Comment Excerpt Text:

Consideration for Existing CCR Surface Impoundments and Existing CCR Landfills 

Constructed with Engineered Liner Systems Obviously, the focus of the proposed rules are the 

older, unlined, existing CCR surface impoundments that were constructed 20 or more years ago 

absent of today’s environmental rules and construction standards. However, many existing CCR 

surface impoundments and existing CCR landfills have been permitted and constructed under 

current environmental rules that have required liners, leachate collection systems, and other 

modern controls. The liners and leachate collection systems in these modern facilities were 

approved by state regulatory agencies and were deemed protective of human health and the 

environment. However, in many cases the liner systems, leachate collection systems, or other 

controls, may not match the specific design criteria in EPA’s proposed rule. There should be 

provisions in EPA’s rules, allowing for the states, when adopting EPA’s rules, to “grandfather” 

these modern existing CCR surface impoundments and existing CCR landfills.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

as well as the technical criteria for these units that is discussed in Unit VI. In particular the 

commenter is referred to the requirements for existing units depending on the unit’s liner type. 

The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect 

states to incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06516-1

Organization1:Plains Justice, Iowa Environmental Council, Iowa Interfaith Power & Light, 

Iowa Physicians for Social Responsibility

Commenter1: Carrie La Seur

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.5.2

Comment Excerpt Text:

To give you some perspective into the dangers Iowans face from unlined, unmonitored coal ash 

dumps and underregulated re-use, we attach 2007 and 2010 reports on coal ash dumping in Iowa 

(Exhibits A and B). These studies show that, in the rare instances that groundwater monitoring 

takes place in Iowa, it has already begun to indicate leaching from coal ash disposal sites. We 

also attach a letter (Exhibit C) sent to EPA by the Iowa Environmental Protection Commission, a 

bi-partisan body that oversees Iowa’s Department of Natural Resources, requesting expanded 

regulation of coal ash disposal. EPC voted unanimously to make this unusual appeal to EPA after 

becoming aware of the severity of Iowa’s coal ash disposal problem.
75

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

as well as the technical criteria for these units that is discussed in Unit VI. The commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06516-10

Organization1:Plains Justice, Iowa Environmental Council, Iowa Interfaith Power & Light, 

Iowa Physicians for Social Responsibility

Commenter1: Carrie La Seur

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

[ATTACHMENT: See original comment for 6516.2 with report: "Coal's Hidden Threat" by 

Plains Justice]

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06516-11

Organization1:Plains Justice, Iowa Environmental Council, Iowa Interfaith Power & Light, 

Iowa Physicians for Social Responsibility

Commenter1: Carrie La Seur

Commenter Type: Advocacy Group

Classification: Substantive
76

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.5.2

Comment Excerpt Text:

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

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

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06516-2

Organization1:Plains Justice, Iowa Environmental Council, Iowa Interfaith Power & Light, 

Iowa Physicians for Social Responsibility

Commenter1: Carrie La Seur

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:

It is the collective opinion of Iowa’s conservation community that Subtitle C provides the only 

effective option for protecting human health and the environment from the physical and the 

chemical dangers of coal ash. Subtitle D would allow EPA only to develop suggested guidelines 

for coal ash disposal, leaving citizens without federally enforceable rules and permitting our state 

to opt out of the guidelines. As your analysis has already indicated, the majority of states are 

likely to ignore any EPA-developed disposal guidelines and would continue to allow dangerous 

coal ash dumping under current, inadequate state programs.

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

for self-regulation and no meaningful change to the status quo should EPA choose Subtitle D 

regulation. In 2007, when our Department of Natural Resources responded to public concern 
77

with a proposal to improve regulation of coal ash, industry responded immediately with a 

campaign to shut down regulatory reform. Several dozen coal ash producers sent nearly identical 

letters to DNR, pleading economic hardship if minimally protective regulations such as liners 

and groundwater monitoring were put in place. As a result, DNR shelved the proposed reforms, 

with the justification that EPA would soon put stronger regulation in place that would supersede 

any effort by DNR.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06538-1

Organization1:South Carolina Office of Regulatory Staff (ORS)

Commenter1: Florence P. Belser

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1

Comment Excerpt Text:

By letter dated August 26, 2009, the ORS previously submitted comments to the EPA on this 

matter. [Footnote 3: Letter of C. Dukes Scott, Executive Director, State of South Carolina Office 

of Regulatory Staff, to The Honorable Lisa Jackson, Administrator, U.S. Environmental 

Protection Agency (August 26, 2009) (submitted in Docket EPA-HQ-RCRA-209-

0640)(Document ID: EPA-HQ-RCRA-2009-0640-0179).] The ORS stands by the previously 

submitted comments and maintains that Coal Combustion Residuals (“CCRs”) should be 

classified as nonhazardous waste under RCRA Subtitle D, rather than as hazardous waste under 

RCRA Subtitle C, because South Carolina has the regulatory infrastructure in place to ensure the 

safe management of these materials. The ORS understands that every state environmental agency 

that has weighed in on this issue to date has opposed regulating CCRs under RCRA Subtitle C. 

As those state environmental agencies have advocated, the ORS takes the position that the best 

management option for regulating CCRs is under RCRA Subtitle D. Each state environmental 
78

agency contends that regulation under RCRA Subtitle D would preserve and expand the 

beneficial use of CCRs and that the regulatory infrastructure is in place to ensure the safe 

management of these materials. We at the ORS believe this is certainly the case in South 

Carolina.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06545-2

Organization1:

Commenter1:Mary Arlis Bates

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:

I am very concerned about the lax regulations of slurry and coal ash in Illinois. They are both 

toxic to humans as well as the environment and should be regulated under subtitle C.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
79

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06554-5

Organization1:

Commenter1:Kristina Keeling

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.2.1

Comment Excerpt Text:

Despite public outcry against the contamination of the Joliet area, little had been done in the way 

of regulation by the IEPA (Illinois Environmental Protection Agency).Agency officials claim 

that jobs made available by the CCR producing plant are needed for the stability of the 

community, and regulation would supposedly cut these jobs and endanger the economic and 

social structure of the Joliet area. We should not put our health at risk for the sake of the 

economy. In fact, insurance premiums and other exorbitant healthcare costs taken on by the 

individual due to these health effects would further stunt the economy, especially on a small

scale like a town. Decreased productivity caused by sickness would also hinder economic 

prosperity. Essentially, we would create a community of sick and poor individuals at the behest 

of large corporation initiatives, where wealth is consequently distributed elsewhere. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.
80

Comment Number: EPA-HQ-RCRA-2009-0640-06591-2

Organization1:

Commenter1:R. Turner Goins

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Studies show that ash is hazardous, and that ground water under ash impoundments violates 

water quality standards, yet West Virginia does not limit contamination, showing why federal 

oversight is needed. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06661-2

Organization1:

Commenter1: Mass Comment Campaign sponsoring organization unknown (65)

Commenter Type: Private Citizen

Classification: Non-substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:

Subtitle C will help ensure that states with lax coal combustion waste standards. like Indiana, 

will not allow drinking water sources to become contaminated from unsafe disposal of coal ash 

waste. In Indiana, poorly regulated coal ash disposal at landfills and lagoons has resulted in 

drinking water contamination in at least two areas: Town of Pines and East Mt. Carmel. Both 

towns are clear examples of the inadequate regulation of coal ash waste in our state and the 

threat to public health that results. Please adopt Subtitle C for coal ash waste disposal. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 
81

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06723-11

Organization1:West Virginia Department of Environmental Protection (WVDEP)

Commenter1: Gary Casto on behalf of Randy C. Huffman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

West Virginia enacted solid waste disposal regulations in 1990 that contain design and 

performance standards that are nearly identical to those referenced in proposed Subtitle D

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06726-2

Organization1:The North American Coal Corporation

Commenter1: Joseph D. Friedlander

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

States are clearly "stepping up to the plate" with regard to CCR regulation, reducing the need for 

federal regulation. Indeed, in the preamble EPA states, "In the May 2000 Regulatory 
82

Determination, the Agency concluded that the utility industry had made significant 

improvements in its waste management practices for new landfills and surface impoundments 

since the practices reflected in the 1999 Report to Congress, and that most state regulatory 

programs had similarly improved". 75 Fed. Reg. 35,143. 

States are cognizant of their recently increased regulatory activities regarding CCRs and are thus 

strongly opposed to unnecessary federal regulation of CCRs. The Environmental Council of the 

States, the national non-profit, non-partisan association of state and territorial environmental 

agency leaders, noted in a resolution on The Regulation of Coal Combustion Products 

(September 22, 2008, revised March 23, 2010) that "state CCW [coal combustion waste] 

regulatory requirements have become more stringent in recent years, the vast majority of new 

and expanded CCW disposal facilities have state-of-the-art environmental controls " and 

resolved that the Environmental Council of the States, "Agrees with the U.S. EPA's repeated 

assessments in 1988, 1993, 1999,2000, and 2005 that CCW disposal does not warrant regulation 

as hazardous wastes under RCRA Subtitle COO (see www.ecos.org/files/4018 file Resolution 08 

14 2010 version.doc). 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06808-3

Organization1:New Mexico Environment Department (NMED) and Energy, Minerals and 

Natural Resources Department (EMNRD)

Commenter1: Bill Brancard

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 12.1.1.3

Comment Excerpt Text:

Authority. New Mexico currently regulates the disposal of coal combustion residuals (CCRs) 

under both its water quality laws and its coal surface mining law. New Mexico currently has one 

CCR disposal facility permitted and regulated under the New Mexico Water Quality Act, 

Sections 74-6-1 to 74-6-17 NMSA 1978, and one under the New Mexico Surface Mining Act, 

Sections 69-25A-1 to 69-25A-36 NMSA 1978. 

Under the Water Quality Act, the NM Water Quality Control Commission (“WQCC”) is 

authorized to require “a permit for the discharge of any water contaminant”. Section 74-6-5(A) 

NMSA 1978. Under the WQCC rules, “no person shall cause or allow effluent or leachate to 
83

discharge so that it may move directly or indirectly into ground water unless he is discharging 

pursuant to a discharge permit...”. 20.6.2.3104 NMAC.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06808-5

Organization1:New Mexico Environment Department (NMED) and Energy, Minerals and 

Natural Resources Department (EMNRD)

Commenter1: Bill Brancard

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

New Mexico does not currently regulate the disposal of CCRs under either its solid waste or 

hazardous waste laws. Under both the New Mexico Solid Waste Act and the Hazardous Waste 

Act, CCRs are exempt from regulation. 

Under the Solid Waste Act, 

"Solid waste" does not include: ... (2) fly ash waste, bottom ash waste, slag waste and flue gas 

emission control waste generated primarily from the combustion of coal or other fossil fuels and 

wastes produced in conjunction with the combustion of fossil fuels that are necessarily 

associated with the production of energy and that traditionally have been and actually are mixed 

with and are disposed of or treated at the same time with fly ash, bottom ash, boiler slag or flue 

gas emission control wastes from coal combustion; 

Section 74-9-3(N) NMSA 1978. 

Under the Hazardous Waste Act, 

"Hazardous waste" does not include any of the following, until the board determines that they are 

subject to Subtitle C of the federal Resource Conservation and Recovery Act of 1976, as 

amended, 42 U.S.C. 6901 et seq.: 

(b) fly ash waste; 

(c) bottom ash waste;

(d) slag waste; 

(e) flue gas emission control waste generated primarily from the combustion of coal or other 

fossil fuels 

Section 74-4-3(K)(2) NMSA 1978. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 
84

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06808-6

Organization1:New Mexico Environment Department (NMED) and Energy, Minerals and 

Natural Resources Department (EMNRD)

Commenter1: Bill Brancard

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

CCR Disposal Facilities. There are three coal burning electrical generation facilities in New 

Mexico that produce significant amounts of coal combustion residuals (CCRs). These facilities 

are: 

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

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

3. Escalante Generating Station (Tri-State) (“Escalante”) 

EPA’s documentation indicates that the three facilities produced 3,983,300 tons of CCRs in 

2007. CCRs from each of these facilities are disposed in New Mexico, but the disposal is subject 

to different regulating agencies and regulatory agencies. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06815-11

Organization1:Michigan Department of Natural Resources and Environment (DNRE)

Commenter1: Liane J. Shekter Smith

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
85

Other Sections: 4.1.1

Comment Excerpt Text:

The DNRE recommends that if CCR regulations are to be promulgated under RCRA, the subtitle 

D option would be the preferred approach. Michigan currently regulates CCR as a solid waste 

and has design, corrective action, and financial assurance requirements similar to those proposed 

under the June 21, 2010, proposed rules for both the RCRA C and D options. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06815-4

Organization1:Michigan Department of Natural Resources and Environment (DNRE)

Commenter1: Liane J. Shekter Smith

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The State of Michigan has regulated coal combustion residuals (CCR) as a solid waste since the 

enactment of the Solid Waste Management Act, 1978 PA 641, as amended (Act 641), which had 

an effective date of January 11, 1979. Michigan's Solid Waste Management Act was codified as 

Part 115, Solid Waste Management, of the Natural Resources and Environmental Protection Act, 

1994 PA 451, as amended (Michigan Compiled Laws 324.11501 et seq.). Amendments to 

Michigan regulations since the enactment of Act 641 include allowing beneficial re-use of CCR 

after the 1987 amendments to the Act and classification of CCR as a low-hazard industrial waste 

when the Solid Waste Management Act administrative rules were amended in 1993. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06816-5

Organization1:Phoenix Cement Company (PCC), Salt River and Rock, Salt River Materials 

Group

Commenter1: Roger R. Smith

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 11.2.5 7.3.1 7.4.1 9.2.2.2 4.5 3.1.2

Comment Excerpt Text:

PCC opposes any additional regulation of CCR. Arizona already has the appropriate regulatory 

framework in place to protect human health and the environment from CCR management units. 

The adoption of a new federal regulatory program would overlap with Arizona’s existing 

regulatory program, would not provide any additional protection to human health and the 

environment, but would simply require Arizona to expend already strained resources to amend 

its proven regulatory program to conform to an unproven federal regulatory program. 
86

Additionally, it would undermine our company and eliminate jobs in these already difficult 

economic times. If EPA insists on further regulating CCR, it should be under a Subtitle D solid 

waste approach which will work in conjunction with existing state programs, not under Subtitle 

C as a hazardous material.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06819-1

Organization1:Missouri Department of Natural Resources

Commenter1: Robert Stout on behalf of Dru Buntin

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Missouri Department of Natural Resources (department) has reviewed the proposed 

regulatory options proposed by the U.S. Environmental Protection Agency (EPA) regarding the 

disposal and beneficial reuse of coal combustion residuals (CCRs) also referred to as coal 

combustion wastes. The department believes that Missouri has adequate regulatory controls in 

place to ensure the proper management of CCRs. EPA should avoid a "one size fits all" approach 

that will unnecessarily divert limited technical resources from existing permitting or compliance 

and enforcement work. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06819-7

Organization1:Missouri Department of Natural Resources

Commenter1: Robert Stout on behalf of Dru Buntin

Commenter Type: State Government

Classification: Substantive

Comment Category:
87

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Missouri has received approval to implement RCRA Subtitle D regulations and our staff has the 

expertise necessary to implement the subtitle D regulations as we already require UWLF's built 

and operated in Missouri to comply with most of the proposed regulations. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06820-4

Organization1:Western Business Roundtable

Commenter1: Holly Propst

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 11.2.5

Comment Excerpt Text:

Heavy-handed federal regulation of CCRs is unnecessary. 

The Roundtable understands and supports the responsible disposal of CCRs. However, we have 

reservations about EPA’s push to elevate its role as regulator. The longstanding system of 

oversight by states has proven generally effective. We understand EPA’s concerns about the 

handling and storage of CCRs after the highly publicized spill at the Tennessee Valley 

Authority's Kingston facility. We believe that any operator that fails to properly manage CCRs in 

a safe and environmentally responsible manner should be held accountable. That does not mean, 

however, that the system at large is broken. 

In fact, EPA’s own findings show that the current system of state regulatory oversight is 

working. A DOE/EPA report, “Coal Combustion Waste Management at Landfills and Surface 

Impoundments, 1994-2004” found that, without additional federal regulations, state regulatory 

oversight and ash management practices made significant strides. Some of that report’s key 

findings: 

A trend towards management in landfills (dry ash handling) and away from surface 

impoundments (wet handling) is evident. 

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

The use of liners has become “essentially ubiquitous” and the protective qualities of the liner 

materials have improved for both landfills and surface impoundments. 

91 percent of units (landfills and surface impoundments) built or expanded between 1994 and 

2004 have groundwater monitoring. 
88

These advancements occurred under state oversight. It is this record that should inform EPA’s 

approach to federal regulations of CCRs. Clearly, there is much that works well in the current 

system. EPA does not need to reinvent the wheel. A federal regulatory regime – if it must occur 

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

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06838-1

Organization1:Minnesota Pollution Control Agency (MPCA)

Commenter1: Lisa Mojsiej on behalf of Tim Scherkenbach

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Currently, the MPCA regulates disposal of coal combustion waste through wastewater and solid 

waste permitting programs. Slurry pond disposal facilities are regulated by the MPCA's 

wastewater program and dry disposal facilities are regulated by the solid waste program.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06838-3

Organization1:Minnesota Pollution Control Agency (MPCA)

Commenter1: Lisa Mojsiej on behalf of Tim Scherkenbach

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1

Comment Excerpt Text:

The MPCA requires coal ash landfills and surface impoundments to meet requirements similar to 

those being proposed in this rule making. At the facilities constructed and operated in accordance 

with those standards, the MPCA has not identified adverse environmental impacts. Therefore, 

the MPCA urges the USEPA to continue to exempt coal combustion waste from Subtitle C of 

RCRA. The MPCA supports the USEPA in the development of regulations for landfills and 

surface impoundments under Subtitle D of RCRA.
89

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also 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-2009-0640-06845-1

Organization1:Arizona Chamber of Commerce and Industry

Commenter1: Rebecca Hudson on behalf of Glenn Hamer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1

Comment Excerpt Text:

While the Chamber recognizes the need for and supports regulation that is protective of human 

health and the environment, regulating CCRs as non-hazardous solid wastes under RCRA 

Subtitle D is the appropriate regulatory approach. In two separate reports to Congress, in 1988 

and 1999, and more recently in a 2000 regulatory determination, [Footnote 1: 65 Fed Reg. 32214 

(May 22, 2000)] the EPA determined that CCRs are high volume and low hazard, and do not 

warrant regulation under Subtitle C. In addition, there are robust Arizona state programs already 

in place that can effectively implement a federal Subtitle D program and ensure environmentally 

protective and safe management of CCRs as non-hazardous solid wastes.

We believe that regulating CCR’s as non-hazardous solid waste under Subtitle D will still offer 

the necessary protections to public health and the environment without creating the economic 

impacts that a Subtitle C designation will have in Arizona.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

------------------------------------------------------------------------------------------------------

Comment Number: EPA-HQ-RCRA-2009-0640-06846-5

Organization1:Florida Department of Environmental Protection (FDEP)

Commenter1: Richard B. Tedder on behalf Mary Jean Yon

Commenter Type: State Government

Classification: Substantive
90

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.5.2.2 7.3.1

Comment Excerpt Text:

o The subtitle C regulatory approach to disposal will include many new regulatory requirements 

that are not needed for CCRs. For example, this approach will include the manifesting of CCRs 

from their generation point to their final disposal. The Department is not aware of any problems 

resulting from the transportation of CCRs in Florida and the addition of this regulatory 

requirement will create an unwarranted burden on the regulated community while adding no 

significant protection for the public. The subtitle C approach will also likely require hazardous 

waste treatment, storage and disposal permits for many generators of CCRs in Florida. The 

Department believes that CCRs are already adequately regulated as a solid waste in Florida and 

the addition of the hazardous waste permitting requirements will do nothing to improve 

environmental protection. The Department also does not have the resources necessary to assume 

the significant increase in workload that will result if EPA regulates CCRs under subtitle C.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06846-6

Organization1:Florida Department of Environmental Protection (FDEP)

Commenter1: Richard B. Tedder on behalf Mary Jean Yon

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3 7.4.1

Comment Excerpt Text:

The Department believes, with its existing state laws, it is appropriately regulating the disposal 

of CCRs as solid wastes in Florida. In addition the Department intends to develop a new rule to 

update and consolidate our requirements for managing industrial wastes including CCRs. 

However, the Department has no fundamental objection to EPA regulating the disposal of CCRs 

as solid wastes under RCRA subtitle D (in particular the D prime approach) provided sufficient 

flexibility is built into those regulations to recognize Florida's unique situation.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 
91

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-2009-0640-06852-4

Organization1:Green Delaware

Commenter1: Alan Muller

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.2

Comment Excerpt Text:

4. Many state agencies are opposing needed reform of coal ash management in a “turf 

defending” mode and/or at the behest of industrial interests. They argue that state-directed 

policies have been adequately protective but the record is otherwise, and they show little 

inclination to correct the errors in those policies.

5. For example, the Delaware Department of Natural Resources and Environmental 

Control(DNREC)continues to allow the dumping (“beneficial reuse”) of coal ash at hundreds of 

sites throughout Delaware with little or no oversight or documentation. This ensures the future 

creation of poorly identified contaminated sites posing health and environmental hazards. 

6. Likewise, the DNREC arranged, or connived at, the reopening of the long-closed Pigeon Point 

landfill to the dumping of millions of tons of coal ash mixed with sewage sludge and other 

potentially harmful materials under the pretext of “landscaping” or “capping” or “regrading,” etc. 

The height of this unlined dump was increased from approximately 60 feet to approximately 90 

feet. Green Delaware has reported on this many times including Alert #261: Closed Pigeon Pont 

landfill reopened to dumping... [Footnote 2: 

http://groups.yahoo.com/group/greendel/message/374] incorporated herein by reference, and 

Alert 571: Public hearing Sept 12: help stop the "daylight dumping" [Footnote 3: 

http://groups.yahoo.com/group/greendel/message/1262], also incorporated by reference. 

7. Likewise, large amounts of coal ash have been accumulated in the City of Wilmington by VFL 

Technology Corp., and perhaps others, in connection with essentially-unregulated “beneficial 

reuse” schemes. Green Delaware has received calls from workers in the area concerned about 

their exposure to harmful substances in these large, uncovered piles of fly ash. These deposits 

could end up being abandoned in place. 

8. Likewise, an ash impoundment/dump at the Indian River Generating Station in Delaware is 

essentially at sea level, surrounded by the waters of the Indian River and Bay. The contents of 

this dump were allowed to wash directly into the water and leachate discharges into ground and 

surface waters. Heavy metals and other contaminants accumulate in finfish and shellfish. The 

problems at this site were discovered accidentally by an off-duty DNREC staffer who happened 

to be fishing in the area. It seems clear from the developing record that the DNREC lacks the 

ability or the will to require adequate remediation of this site. See, for example, this newspaper 

article [Footnote 4: http://www.capegazette.com/storiescurrent/201011-01-15/12012-coal-
92

ash.html] incorporated by reference. 

9. The DNREC has not only refused to properly regulate coal ash, but has even refused to accept 

testimony from on the need to do so. 

This is from the transcripts of two hearings [Footnote 5: http://greendel.org/?p=9313] held on 

October 22, 2007: 

[Muller] 15 And, very candidly, a very high percentage of 

16 the scandals and controversies that we have got in 

17 Delaware have got to do with waste management. 

18 You know, just last week Bob Haynes conducted 

19 a hearing on the Pigeon Point garbage dump, and 

20 although that would be considered primarily a matter 

21 for the solid rather than the hazardous waste 

22 regulations, hundreds of thousands of tons of coal ash 

23 are coming in there every year from out of state, and 

24 the EPA has a proceeding going on now, which I will put 

9 

1 into the record, and the issue there is that although 

2 coal ash is not now regulated, it is, in fact, nasty 

3 stuff, it’s full of hazardous constituents, and I heard 

4 a lot of testimony from a variety of people who are 

5 very upset that this material is being hauled into 

6 Delaware and put on a dump that’s supposedly closed. 

7 It’s being done under pretext. 

8 MS. VEST: I understand, Alan, and that record 

9 is still being open, but as a matter of point here, 

10 that’s Pigeon Point and that’s another hearing matter. 

11 This hearing tonight is just for comments on the 

12 proposed regs. 

13 MR. MULLER: Well, I understand that, Lisa, 

14 and the reason I am making that comment is simply to 

15 make the point that Delaware’s regulations governing 

16 hazardous waste aren’t, in fact, governing effectively 

17 the management of hazardous waste in Delaware and some 

18 very substantial changes are needed in those 

19 regulations far and above, you know, having a cap on a 

20 used oil tank. 

21 And I won’t go on and on now at length about 

22 that, but I think it’s important to note that there are 

23 many, many issues that aren’t addressed in this 

24 document, and the record needs to remain open in order 

10 

1 that we and other members of the public have an 

2 opportunity to comment on that. 

3 MS. VEST: Duly noted, and the record should 
93

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

5 remain open for public comment until the close of

6 business October 31, so, you know, absolutely if you

7 feel like you would or other members would like to

8 submit written comments, please do so. That gives you

9 a full week to get more comments in, and they will

10 become part of the record.

11 MR. MULLER: I know they will, and I would

12 like to ask you to hold the record open for 30 days.

13 MS. VEST: I will take that under advisement.

14 MR. MULLER: You are only talking ten, and I

15 don’t think that –

16 MS. VEST: But, Alan, these have been noticed

17 for awhile.

18 MR. MULLER: Well, they have, and you are

19 quite right about that, but it’s also true that there

20 hasn’t been any substantial public outreach about this

21 that I am aware of, and I haven’t seen anything in any

22 DNREC publications inviting public comment.

23 MS. VEST: Did the Department not workshop

24 this?

11

1 MR. DAVIS: Yes, we did workshop this, yes.

2 MS. VEST: And when did you workshop it?

3 MR. DAVIS: That is shown in exhibit — That

4 is shown in Exhibit 2. We had a workshop on August 22,

5 and here is the presentation, and we also received some

6 comments, and these are the people who participated,

7 and here is the letter that went to all the hazardous

8 waste generators in the state, who they were sent to,

9 and here is the notice that was on the DNREC web page

10 and the public notice that appeared.

11 MR. MULLER: And I was in Minnesota at that

12 time and I didn’t attend the workshop, but I noticed

13 your mailing list was hazardous waste generators?

14 MR. DAVIS: Yes.

15 MR. MULLER: Did you send that to the press or

16 to any nongovernmental organizations, advocacy groups,

17 any other organizations?

18 MR. DAVIS: DNREC did issue a press release,

19 yes.

20 MR. MULLER: I am just asking about that

21 mailing.

22 MR. DAVIS: That was a specific letter

23 specifically to hazardous waste generators. [emphasis added]
94

MR. MULLER: Okay, now, Amendment 3 speaks to

2 industrial landfills and liner. Now, there is a

3 proceeding going on now involving the reissuance of

4 permits for a coal ash dump at DuPont Edgemoor Plant?

5 MS. VEST: And I am not going to entertain any

6 comments or questions in this record on that. That’s

7 another matter entirely.

8 MR. MULLER: Well, I don’t think so, Lisa,

9 because here we are, Amendment 3, liner, general

10 provisions, but this is a facility that has no liner

11 and DNREC is proposing to re-issue the permit.

12 MS. VEST: Alan, I am not going to give you

13 much more leeway on this. We are not going to talk

14 about Pigeon Point, Cherry Hill, DuPont Edgemoor.

15 These are comments on the regulations at hand. I am

16 not going to let you bring them in in a sideways

17 manner.

18 If you have comments or concerns about the

19 proposed amendments, we will entertain them. If you

20 have additional comments that you wish the Department

21 to elaborate on, such as explanations or definitions

22 contained within the amendments, we will certainly

23 entertain those, but I will put a stop to you bringing

24 in other matters inclusive into this record. It’s not

25

1 going to happen.

2 MR. MULLER: Well, I realize, Lisa, that short

3 of a humongous wrangle, it’s going to be very

4 difficult, but my point was to establish a context and

5 to point out why Amendment 3 on industrial landfills is

6 unsatisfactory, because there are issues in Delaware

7 right now involving industrial landfills that need

8 liners and don’t have them. And the only provision

9 here does not appear to me to address that, and the

10 issue needs to be addressed.

11 The issue that needs to be addressed is that

12 any landfill of that kind that is now operating without

13 a liner should not get a new permit and should not be

14 continued to operate, should not be allowed to continue

15 to operate without a liner.

And so on...... 

10. Scandals aren't limited to Delaware. Basin Electric in North Dakota, campaigning 

aggressively [Footnote 6: 
95

http://www.basinelectric.com/News_Center/Publications/Feature_Articles/EPA_proposal_a_cost

ly_burden.html] against effective regulation of coal ash, claims: “The states do an extremely 

good job of controlling, inspecting and monitoring all ash disposal sites,...” but also says 

“Livestock producers mix coal ash with the soil in their feedlots. Testing has shown that using 

coal ash improves wet, muddy feedlots, which can prevent animals from growing effectively and 

staying healthy.” 

11. The Minnesota Independent reports [Footnote 7: 

http://minnesotaindependent.com/29606/fly-ash]: 

“...the Minnesota Pollution Control Authority (MPCA) has approved the use of fly ash from 

Otter Tail Power Company’s Hoot Lake facility in Fergus Falls, Minn., to be used as a soil 

stabilizer in livestock pens, as an aggregate for private roads and as a base pad in feed storage. 

Up to two inches of ash can be spread over an area to treat the top six inches of soil.” 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06852-7

Organization1:Green Delaware

Commenter1: Alan Muller

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 1.1

Comment Excerpt Text:

Both state and federal regulatory agencies have failed to regulate coal ash effectively or in 

accord with existing law. The situation is in fact one of the great scandals in the history of US 

environmental regulation. The integrity of state and federal has agencies buckled under pressure. 

This integrity needs to be restored. Our interactions with Delaware regulators have convinced 
96

use that they lack the understanding, the will, and perhaps the capacity to undertake effective 

regulation at the state level. Thus, it is essential that EPA take prompt and unambiguous action.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06863-25

Organization1:Avista Corp.

Commenter1: Darrell Soyars

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.2

Comment Excerpt Text:

The Subtitle D approach must allow for state implementation of the federal regulations. 

While Avista supports the Subtitle D Prime option (with the adjustments discussed below), a 

major shortcoming of this approach, as well as with the other Subtitle D alternatives, is the lack 

of any mechanism for qualified state programs to step in and directly administer the Subtitle D 

CCR regulations exist. For instance, Montana’s Major Facility Siting Act [under which Colstrip 

is regulated through its Certificate of Environmental Compatability and Public Need], meets or 

exceed the federal controls. EPA’s proposed approach makes no practical sense, and it would 

result in parallel and redundant regulatory programs for the same materials. Colstrip has been 

fully regulated by the Montana Department of Environmental Quality (DEQ) since the plant was 

constructed, Avista is very concerned about how problematic it will be to maintain compliance 

with dual regulatory programs – both state and federal – for CCR. Furthermore, such an 

approach would directly contravene the Bevill Amendment’s directive that EPA must avoid 

duplication of effort with pre-existing regulatory programs. 

See RCRA 8002(n) [Footnote 1: This section provides, in relevant part, that “the Administrator 

shall, as he deems appropriate, review studies and other actions of other Federal and State 

agencies concerning [CCRs] and invite participation by other concerned parties, including 

industry and other Federal and State agencies, with a view toward avoiding duplication of 

effort.”]. 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 Congress’s admonition in the Bevill Amendment against duplication of efforts by other 

federal and state agencies.65 Fed. Reg. 32215. Unfortunately, EPA has failed to adhere to this 

Congressional directive in the proposed Subtitle D regulatory alternatives, including the Subtitle 

D Prime option, and has proposed a self-implementing program that will impose duplicative and 

redundant requirements. 
97

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06863-26

Organization1:Avista Corp.

Commenter1: Darrell Soyars

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As a result of its findings in the final 2000 Regulatory Determination and the supplemental 2007 

joint EPA/DOJ Report of state CCR programs, EPA is well aware that there are many mature 

state CCR regulatory programs with requirements for permitting, liner, and groundwater 

monitoring controls similar to those proposed in the Subtitle D options. In fact, EPA concluded 

in its 2000 Regulatory 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 . . . .” Id. at 32229. The joint 2007 DOE/EPA Report, 

which evaluated changes in state CCR controls that occurred after 1995 (the cut-off date for the 

data used in the 1999 Report to Congress), found even further improvements in state CCR 

controls. Based on the states surveyed, the report found more stringent state CCR controls with 

respect to permitting, liner, groundwater monitoring, leachate collection, closure and postclosure care, and siting requirements. 2007 DOE/EPA Joint Report at S-8. 

In addition, the most recent survey of state CCR controls compiled in 2009 by the Association of 

State and Territorial Solid Waste Management Officials (“ASTSWMO”) confirms the increasing 

level of protection provided by state controls, finding, among other things, that 86% of the states 

with CCR landfills and 69% of states with CCR surface impoundments have permitting 

requirements for these disposal units. Letter from ASTSWMO to Matt Hale, EPA, April 1, 2009

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
98

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06865-2

Organization1:Constellation Energy

Commenter1: Charlene Zaruba on behalf of Paul Allen

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Regulation by States Is Appropriate and Sufficient 

EPA is soliciting comments specifically on the adequacy of state programs to ensure proper 

management of CCRs. Constellation owns coal-fired generation in four states (MO, PA, CA, and 

UT. In all four states Constellation has observed active and rigorous regulatory programs that 

review and approve our CCR management, and they require regular groundwater monitoring and 

reporting, as well as stipulations for CCR placement and capping. In Maryland where a 

significant portion of our coal-fired generation resides, Maryland Department of the 

Environment (MOE) inspectors make regular appearances at our CCR management facilities. 

Maryland has recently enacted a comprehensive CCR management program, and such programs 

exist in other states (for example, Pennsylvania, Wisconsin). Because Constellation already sees 

active oversight on the state level, we see no need for additional federal oversight Subtitle D 

regulations have been adopted at the federal level, implemented at the state level and have been 

through almost 20 years of use under various site-specific and waste-specific conditions. Many 

states currently use a version of Subtitle D for their regulation of CCRs now, and there is a 

proven track record for the success of these programs. Through this process the states have had 

the regulatory flexibility to customize the regulations to meet their state-specific criteria. The 

states are also staffed with persons knowledgeable of the Subtitle D regulations and their 

implementation. Therefore the regulation of CCRs when destined for disposal under Subtitle D 

approach can be implemented under proven methods and with the least amount of trial and error. 

The proposed Subtitle D regulation allows the management of CCRs using methods that are 

proven to be safe and reliable. 

Recognition of Local Conditions 

Constellation operates coal-fired generation stations in differing geographical, geological and 

hydrogeological regimes. While minimum standards for liners and caps may be fitting, the 

regulation should allow for flexibility on a site-specific basis to enable the generator and the state 

agency to tailor the engineering design to the local conditions. For example, where a single 

composite liner system may be appropriate in regions in the eastern U.S., it may not be necessary 
99

in areas of the west or southwest where rainfall is limited and the depth to groundwater can be 

hundreds of feet. Variations based on specific local conditions have been successfully 

implemented under existing Subtitle D programs. Application of Subtitle D to CCRs will 

incorporate these state specific practices and approvals and eliminate the need to create the same 

flexibility under Subtitle C. Subtitle D will allow the implementation of new standards much 

more quickly than recreating a new review process. Any gaps that may exist in the regulation of 

CCRs at the state level under Subtitle D can be filled with the implementation of the federal 

standards and methods to address alternatives at the stale level with EPA input 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06866-23

Organization1:Washington State Department of Ecology

Commenter1: Ken Zarker for K. Seiler

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Ecology's Solid Waste and Hazardous Waste Programs work in partnership with jurisdictional 

Health Departments to implement regulations for municipal solid waste and for limited purpose 

landfills and surface impoundments under Washington Administrative Code, Chapters 173-351 

and 173-350, respectively. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 
100

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06868-3

Organization1:Cleco Corporation

Commenter1: Bill Matthews

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Louisiana's solid waste program for landfills and impoundments is very similar to the subtitle D 

Prime program. The Louisiana program requires, among other things, consideration of unit 

design-structure, liners, and groundwater monitoring. Impoundments existing prior to October 

1993 were required to have liners having a coefficient of permeability no greater than 1x10-7 

cm/sec. This was the case for the Cleco impoundments. The Cleco units have clay or composite 

liners, have experienced no releases due to structural failure and no overflows. Groundwater 

monitoring over the course of years has shown that there has been no adverse impacts to 

groundwater from Cleco impoundments and landfills. Therefore it can be said that the Louisiana 

version of subtitle D Prime is protective of human health and the environment. Obviously the 

Subtitle D Prime option is an acceptable option in lieu of Subtitle C.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06868-4

Organization1:Cleco Corporation

Commenter1: Bill Matthews

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In the August 9, 1993 regulatory determination, EPA stated that "it is unlikely that Subtitle C 

would effectively address the problems associated with the four large-volume fossil fuel 

combustion wastes (CCRs) without imposing unnecessary costs". EPA also stated in that 

regulatory determination that "regulation under Subtitle C of RCRA is inappropriate for the four 

waste streams that were studied (fly ash, bottom ash, boiler slag, and flue gas emission control 
101

waste) because of the limited risks posed by them and the existence of generally adequate State 

and Federal regulatory programs". These statements focus on costs versus performance of the 

two programs. These statements are supported by the fact that the Louisiana solid waste 

regulatory program, which is very similar to a Subtitle D Prime program, requires for 

impoundments and landfills specific unit design requirements as well as engineered liners having 

a coefficient of permeability no greater than l x l0-7 cm/sec.In addition, the Louisiana program 

requires groundwater monitoring. The Cleco impoundments and landfills meet these Louisiana 

solid waste permitting requirements. The Cleco units have experienced no releases due to 

structural failure and no overflows. Groundwater monitoring over the course of years has shown 

that there has been no adverse impacts to groundwater from Cleco impoundments and landfills. 

So, it is evident that the Louisiana program is an adequate regulatory program.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06872-1

Organization1:State of Pennsylvania Department of Environmental Protection

Commenter1: Todd M. Wallace

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The management of CCR is very important to this state, both environmentally and economically, 

as most of the facilities generating electricity in Pennsylvania combust either pulverized coal or 

waste coal as fuel and depend on an environmentally sound program to ensure the effective 

management of their waste coal ash.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06872-11

Organization1:State of Pennsylvania Department of Environmental Protection

Commenter1: Todd M. Wallace

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
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Comment Excerpt Text:

The management of CCR is very important to Pennsylvania (PA), both environmentally and 

economically. Most of the utilities that generate electricity in PA combust either pulverized coal 

or waste coal as fuel and depend on a predictable, environmentally sound program to ensure the 

effective management of their CCR, PA possesses more than 30 years experience with the 

management of CCR. Specifically, PA DEP has already developed a comprehensive regulatory 

program for the disposal of CCR that exceeds either the Subtitle C or Subtitle D approaches that 

are proposed in this federal rulemaking.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06872-15

Organization1:State of Pennsylvania Department of Environmental Protection

Commenter1: Todd M. Wallace

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

There are 43 coal-fired electricity producers in PA that generate approximately 20 million tons of 

CCR annually. Of those 20 million tons/year, 11 million tons/year are beneficially used in mine 

reclamation and as structural fill, and slightly less than one million tons/year is used for other 

beneficial uses. The remaining 8 to 9 million tons/year are landfilled as residual waste.

PA established residual waste regulations in 1992 that govern the transportation, storage and 

disposal of CCR. These regulations are based on sound scientific and engineering standards, and 

are similar to the Commonwealth's RCRA Subtitle D-authorized municipal waste 

regulations.CCR landfills have been designed and operated in accordance with these regulations 

and are protective of Pennsylvania's environment and human health and safety. These residual 
103

waste regulations were used as a basis for EPA's existing Guide for Industrial Waste 

Management. According to EPA, that guide was designed to protect groundwater, surface water, 

and air resources under an industrial Subtitle D-like residual 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 referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06876-3

Organization1:Tennessee Riverkeeper, Inc.

Commenter1: David Whiteside

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In at least ten states that produce large amounts of coal ash, there is no law requiring monitoring 

of operating coal ash ponds. In Alabama, most coal ash disposal sites are not subject to any state 

regulation whatsoever. The same goes for Texas. In Tennessee, home to five proven damage 

cases and the TVA’s massive spill of over 1 billion gallons of coal ash slurry, coal ash 

impoundments are still unregulated, and there are no standards for structural integrity, 

groundwater monitoring, corrective action, or post-closure care. Nor are there any regulations 

that cover transportation of coal ash before its disposal. The regulations for coal ash waste are 

inconsistent from state to state. The federal government and the EPA need to step in and provide 

consistent regulations for the state regulatory agencies to follow.

One of those high hazard coal ash impoundments is on the Tennessee River in Tennessee. The 

Johnsonville Fossil Plant NPDES permit does not contain any numeric effluent limits for metals 

contained in, or whole effluent toxicity caused by, discharges of coal combustion waste 

(“CCW”) pollutants to the Tennessee River. Although required by the Clean Water Act, The 

Tennessee Department of Environment and Conservation (TDEC) has failed to set technology-
104

based effluent limits or water quality-based effluent limits in the Johnsonville Fossil Plant draft 

permit. TDEC has not taken action to stop the unpermitted discharge of pollutants from the 

Johnsonville Fossil Plant or correct the conditions that created longstanding seepage problems 

from Johnsonville’s CCW ponds and impoundments in the draft permit, according to the 

Environmental Integrity Project.

The amount of damage caused by coal ash in certain states, as well as monies paid for corrective 

action and lawsuit settlements, reveals the true cost of these states’ weak and often nonexistent 

regulations. The failure of a discharge pipe at a plant in Alabama cost $9.2 million to correct a 

6.1 million gallon release from an FGD pond. A similar example occurred outside the Tennessee 

Valley, in Pennsylvania, where the release of water and fly ash from a power plant to the 

Delaware River in 2005 cost approximately $37 million to clean up.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06877-1

Organization1:Detroit Edison Company

Commenter1: Dennis Leonard Principal Engineer

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The State of Michigan has a robust and effective program for regulating CCRs. The company 

and the state have worked to upgrade the company's landfills to meet standard as they have been 

developed and we have worked to assure that the ground water standards contained in 40 CFR 

Part 257.3-4 have always been met.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
105

Comment Number: EPA-HQ-RCRA-2009-0640-06885-3

Organization1:Hoosier Environmental Council (HEC)

Commenter1: Jesse Kharbanda

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1

Comment Excerpt Text:

3. State regulation is not adequate to assure proper management. The State of Indiana has not 

taken steps to assure protection of health and the environment from improper disposal practices.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans.

Comment Number: EPA-HQ-RCRA-2009-0640-06885-8

Organization1:Hoosier Environmental Council (HEC)

Commenter1: Jesse Kharbanda

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

State regulation is not adequate to assure proper management. 

The State of Indiana’s record on oversight and enforcement related to CCR disposal is limited, 

inconsistent, and inadequate to protect human health and the environment. The EPA’s Subtitle D 

proposal would be unlikely to substantially change the state’s approach to CCR regulation. 

Indiana has 53 surface impoundments at 16 power plants. These facilities are lightly regulated, 

with no firm requirements for liners or effective groundwater monitoring. Under Indiana law, no 

construction permit is required for these facilities, which are typically located in floodplains 

adjacent to waterways. Despite a requirement in state law that state rules be adopted for 

regulating these impoundments, no such rules have ever been adopted. Moreover, the state’s 

rules for CCR landfills do not provide for adequate groundwater monitoring or full 

characterization of the geologic conditions at the site. 

Indiana does not have enforceable regulations for minefilling of CCRs. Despite numerous calls 

by citizens groups for effective regulation of this disposal practice, Indiana has chosen to adopt a 

“guidance document” instead of binding regulations, and has permitted the disposal of these 
106

wastes in surface mines without adequate protection for water supplies or requirements for 

effective groundwater monitoring.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06886-2

Organization1:Heart of Illinois Group Sierra Club

Commenter1: Joyce Blumenshine

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 6.1.1 1.4

Comment Excerpt Text:

We see the impacts of coal ash in our community. The failure of the Illinois Environmental 

Protection Agency to adequately regulate coal ash has meant the “solution by dilution” answer to 

groundwater contamination by the Ameren Duck Creek Power Plant, near Canton, Fulton 

County. Our members reside in the immediate area and have private water wells, fish, swim and 

recreate near this power plant. The IL EPA took over seven years to deal with the boron 

groundwater contamination from this power plant's ash settling ponds. Now the contaminated 

water is being allowed to be let into the Illinois River in 'regulated' amounts. The Duck Creek 

plant had to get piped water from the City of Canton for their potable water as they polluted their 

groundwater at the plant with their treatment ponds. Our concerns are for the Illinois River 

mussel beds that were known to be near where the water discharge was proposed to be and other 

aquatic life. We believe the IL EPA has inadequate oversight of such 'solution by dilution' means 

of dealing with coal ash contamination and that the only way to really have this corrected is with 

federal regulation of coal ash.

Our members commute to work and meetings by the Ameren A.G. Edwards Power Plant, Peoria 

County, at the edge of Bartonville. This plant has only a levee between it and the Illinois River.
107

The coal ash piles are visible from the highway and to our knowledge this ash area has no liners 

and does not even have water monitoring. These old coal plants and coal ash impoundments are 

ticking time bombs for our community health and well being. The Peoria metro area has very 

high asthma rates and high cancer rates for the state of Illinois. We are very concerned that 

without Subtitle C regulations as Special Waste, the same old practices from fifty years ago will 

continue to be used at these plants for their handling of coal ash. Our IL EPA is short staffed and 

does not seem to be able to make headway in any kind of current best science practices to apply 

to these coal ash sites to improve protections for public health and long-term safety.

The Dynegy Midwest Havana Power Plant has one of the top 50 most hazardous coal ash 

impoundments in the nation, according to a listing from the EPA. I have talked to citizens living 

near this impoundment, and they have never received any information from the power company 

about emergency procedures or safety regarding the ash impoundment next to their residential 

area. If this impoundment were to break, the slurry wave is expected to inundate several miles 

from the waste area, which will include many homes. Within the first block north of this coal ash 

slurry is a home daycare business and retired senior citizens. What would become of these 

citizens if the ash pond fractured? We contend that neither the utility companies nor the IL EPA 

are doing their jobs adequately in Illinois to insure protections for current and future generations 

of citizens from coal ash impacts.

The U.S. EPA must move forward with the known scientific facts that coal ash is toxic. Children,

the elderly or those with health problems bear the health burdens of this pollution in our air and 

water.

We are concerned about the long-term impacts to our environment and for future generations if 

coal ash continues to be ignored as a toxic waste, even though it contains many heavy metals.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06912-2

Organization1:Sunflower Electric Power Corporation

Commenter1: Paul E. Reynolds

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Holcomb Station is located in an arid locale in western Kansas and is one of eight coal-fired 
108

power plants operating in the state of Kansas. The management of CCRs at each facility is 

overseen by the Kansas Department of Health and Environment (KDHE).

Response: The Agency acknowledges and appreciates the comment. 

___________________________________________________________________

Comment Number: EPA-HQ-RCRA-2009-0640-06917-13

Organization1:Texas Commission on Environmental Quality (TCEQ)

Commenter1: Tangela Niemann on behalf of Mark R. Vickery

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 11.2.5

Comment Excerpt Text:

The TCEQ believes that our state regulations and programs for CCR management are effective, 

provide for safe disposal practices, and promote conservation of natural resources. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06917-2

Organization1:Texas Commission on Environmental Quality (TCEQ)

Commenter1: 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-funded studies confirm that Texas is the largest consumer of coal in the nation and 

consequently is one of the largest producers of CCRs. [Footnote 4: Buckley, Tera D., and 

Pflughoeft-Hassett, Debra F., January 2005, Review of Texas Regulations, Standards, and 

Practices Related to the Use of Coal Combustion Products, Final Report, prepared for U.S. 

Environmental Protection Agency, Washington, DC 20460 by Energy & Environmental 

Research Center, University of North Dakota, Grand Forks, ND., Publication 2005-EERC-01-

01.]. Texas has a big stake in the safe and environmentally sound management of CCRs. The 

following information provides details about current management practices and regulations in 

Texas that have helped to effectively and safely manage large CCR quantities generated in the 

state.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 
109

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06917-7

Organization1:Texas Commission on Environmental Quality (TCEQ)

Commenter1: 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:

CCRs are considered nonhazardous industrial solid wastes by the TCEQ consistent with EPA's 

May 2000 determination. Per TCEQ regulation at Title 30 Texas Administrative Code (TAC) 

Section 335.2, a facility is not required to obtain a permit for the processing or disposal of 

nonhazardous industrial solid waste (like CCRs) if the facility is: (1) owned or otherwise 

effectively controlled by the owners or operators of the particular industrial plant, manufacturing 

plant, mining operation, or agricultural operation from which the waste results or is produced; 

and (2) located within 50 miles from the plant or operation that is the source of the industrial 

solid waste and the waste is not commingled with waste from any other source or sources. 

However, the facility is required to submit a notification and register with the TCEQ under 30 

TAC Section 335.6 if the CCR is not recycled as a product.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06921-20

Organization1:Associated General Contractors of America (AGC)

Commenter1: Melinda L. Tomaino

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.4.5

Comment Excerpt Text:

Private industry and other beneficial users of CCRs are not the only groups concerned about a 
110

using the material should EPA deem it hazardous. Some states, such as Florida, Illinois, 

Minnesota, Pennsylvania, Texas and Wisconsin—which represent 32 percent of the total 44.7 

million annual tons of CCR beneficial uses as of 2004—will not allow the beneficial use of a 

hazardous material.

Of the 10 states listed below (FL, GA, IA, IL, IN, MN, PA, TX, UT, WI) identified by ORCR as 

major users of coal combustion fly ash, seven of these states have industrial waste regulations or 

statutes that are available on-line. Based on the 2007 EIA-860 "Annual Electric Generator 

Report" database published by the Energy Information Agency of the US Department of Energy, 

these 10 states represent 188 (i.e., 38%) of the 495 NAICS 221112 coal-fired electric utility 

plants, and represent 63 million (i.e., 42%) of the ORCR-estimated 149 million annual tons CCR 

generation by these 495 plants (2007).

Six of these 10 states (FL, IL, MN, PA, TX, WI) limit industrial waste beneficial use to 

“nonhazardous” wastes. These six states represent 32% percent of the total 44.7 million annual 

tons of CCR beneficial uses as of 2004. Consequently, if CCR disposal becomes listed as RCRA 

“hazardous” waste, then its beneficial use could be affected in these states if RCRAauthorized 

state government programs were to prohibit CCR beneficial uses as a result of such hazardous 

waste listing for CCR as a RCRA Subtitle C “hazardous” waste. (See Degreare and Cochran, 

State Government Coal Combustion Ash Beneficial Use Programs and Federal RCRA 

“Hazardous Waste” Regulation, April 16, 2009, EPA-HQ-RCRA-2009- 0640-0271)

Response: The commenter is referred to Unit IV of the preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06959-2

Organization1:Prairie Rivers Network, Illinois Chapter of the Sierra Club, American Bottom 

Conservancy

Commenter1: Traci L. Barkley

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 6.1.1

Comment Excerpt Text:

Proper tracking and management of coal ash is critical to protect public drinking water supplies 

and the health of our natural environment. Given the real threats to citizens as evidenced by our 

number one ranking in the number of coal ash contamination sites nationwide (Attachment A), 

many Illinoisans would be surprised to learn that no one within any of our state agencies 

maintains a list or tracks where and how coal ash is used, stored or disposed of in the state. The 

public cannot responsibly avoid risk if they don’t know where the risk lies.

And the risk is great as coal ash contains arsenic, mercury, selenium, chromium and cadmium, 

among other pollutants. When contaminants enter drinking water supplies, they can cause 

damage to nervous systems and other organs, especially in children. In most states — at ponds, 

landfills, and mine pits where coal ash gets dumped — a slow seepage of the ash’s metals has 

poisoned water supplies, damaged ecosystems, and jeopardized citizens’ health. Unfortunately, 
111

the Illinois communities of Marion, Joliet, Venice, Oakwood, Havana, Alton, Powerton, 

Hennepin, Hutsonville, Canton, Wood River, and Coffeen now know this.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

The commenter is also referred to EPA’s discussions in Units X and XI of the preamble regarding 

risk assessment of CCR management and damage cases. 

Comment Number: EPA-HQ-RCRA-2009-0640-06959-4

Organization1:Prairie Rivers Network, Illinois Chapter of the Sierra Club, American Bottom 

Conservancy

Commenter1: Traci L. Barkley

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.2.1 7.1.2.2 7.1.2.4

Comment Excerpt Text:

As concern with rising health care costs and increasing prevalence of cancer mounts, one of the 

most responsible things we can do as citizens, elected officials and public service agencies is to 

reduce and mitigate the known threats to public health and safety. Unfortunately, the current 

regulatory framework to control these wastes is weak and convoluted. In Illinois, depending on 

where the coal ash is produced and where it will be disposed of, the party responsible for the coal 

ash may or may not need to complete paperwork or apply for a permit from one of three different 

state agency divisions. There also may or may not be an evaluation of the coal ash’s relative 

threats to existing uses or natural resources at the proposed disposal site. For example, no permit 

is required if coal ash is disposed of onsite at a power plant, though the Illinois EPA’s Bureau of 

Land is notified. No permit is required if the coal ash is dumped in an abandoned mine, though 

the Illinois Department of Natural Resources is notified. In both of these instances, no review of 

potential threat to groundwater or surface waters is conducted and no opportunity exists for the 

public to comment. If coal ash is disposed of at active mines, a permit is required by IEPA's 

Bureau of Water though very few pollution controls like liners, currently recommended by the 

USEPA and the National Academy of Sciences, are required. In Illinois, our infrastructure and 

capacity to coordinate the proper monitoring and management of coal ash cannot be relied upon 

to ensure adequate protections of our water supplies, resources and communities. 

In fact, it wasn’t until the state-wide review of ash impoundments in Illinois in the wake of the 

December 2008 impoundment failure in Kingston, Tennessee, that data collected at coal ash 

disposal sites were reviewed by the Illinois Environmental Protection Agency. What the Agency 

has found is startling:
112

1) Most coal ash impoundments do not have liners to contain waste and prevent pollution of 

groundwater. 

2) Groundwater monitoring is not required at most coal ash impoundments.

3) Groundwater is contaminated at the ten power plant sites that have been investigated thus far, 

and

4) Dams creating the impoundments at most sites are unpermitted and have not been inspected 

for safety or stability. 

In Illinois, we are missing what we so desperately need to protect our people and wildlife from 

coal ash contamination - liners, monitoring, effective clean-up plans, dam safety requirements, 

and enforceable standards.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06959-6

Organization1:Prairie Rivers Network, Illinois Chapter of the Sierra Club, American Bottom 

Conservancy

Commenter1: Traci L. Barkley

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Illinois EPA has proposed remedying several coal ash contamination sites in Illinois with 

“groundwater management zones” in which the contaminated groundwater is actively pumped to 

retreat the pollution plume and then discharged, without further treatment, to a nearby surface 

water under an NPDES permit. At one such site, the Ameren Energy Venice Power Station, a 

contaminant plume of boron (> Class I GWS) extends 600 feet, and a contaminant plume of 

arsenic (> Class I GWS) extends even farther, into the Mississippi River. The plumes were 

discovered in the late 1990s when groundwater monitoring was finally required. In March 2010, 

a final plan for closure of the ash ponds was begun including a groundwater management zone 

and final capping of the impoundment system. While the groundwater management zone may 

prevent the groundwater contaminant plume from progressing into the River, the mixing zone in 

the Mississippi River granted by the Illinois EPA will deliver the same pollutants but in much 

larger quantities, to the segment of the river just upstream of the drinking water intake for the 

cities of East St. Louis and Belleville.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 
113

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06988-16

Organization1:Missouri Joint Municipal Electric Utility Commission

Commenter1: Floyd Gilzow

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 8.1

Comment Excerpt Text:

EPA has no anecdotal or systemic data demonstrating that current state and federal regulations 

administered by the EPA and MDNR are not protective of the environment.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06988-5

Organization1:Missouri Joint Municipal Electric Utility Commission

Commenter1: Floyd Gilzow

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:
114

The Solid Waste Management Program and the Water Protection Program of the Division of 

Environmental Quality at the Missouri Department of Natural Resources operates a credible 

program, protecting the environment from stored and reused CCR’s. There is no anecdotal or 

systemic evidence that the permits issued by the programs have allowed CCR’s to enter the 

environment from sites in Missouri.

MJMEUC fully supports the comments on the sufficiency of the current regulatory structure 

provided by City Utilities of Springfield, MO.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06988-7

Organization1:Missouri Joint Municipal Electric Utility Commission

Commenter1: Floyd Gilzow

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The December 22, 2008 structural collapse of the coal ash pond at the Kingston Power Plant in 

Harriman, TN, was tragedy for the community and the environment. The state data collected and 

the experience of utilities in Missouri has shown no significant release of pollutants into the 

environment. The use of CCR as fill in coal mines, for road beds, as well as storage in properly 

maintained and monitored coal slurry ponds has been accomplished without danger to the 

environment or the health of the citizens in the state.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 
115

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

With respect to the Tennessee spill referenced in the comment the commenter is referred to 

EPA’s discussion of damage cases in the preamble (See Unit XI) as well as the supporting 

documents available in the docket supporting this rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06991-1

Organization1:East Kentucky Power Cooperative (EKPC)

Commenter1: Jerry Purvis

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Kentucky classifies utility wastes (fly ash, bottom ash, scrubber sludge) as special wastes. 

Pursuant to Kentucky Revised Statute (KRS) 224.50-760(1), special wastes are defined as wastes 

of high volume and low hazard.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06991-4

Organization1:East Kentucky Power Cooperative (EKPC)

Commenter1: Jerry Purvis

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2 10.4.2

Comment Excerpt Text:

Impacts to EKPC and its members

EKPC does not believe the proposed regulations are necessary to manage the CCR produced at 

these facilities in an environmentally sound manner because:

- CCR are not hazardous wastes by characteristic under the federal Subtitle C regulations;

- The stigma of a hazardous waste listing will reduce the potential to utilize CCR for beneficial 

reuse;

- Kentucky currently provides a regulatory framework for the disposal of CCR in Title 401 of the 

Kentucky Administrative Regulations Chapter 45; and

- EKPC maintains its coal-fired generating facilities within this regulatory framework and 

oversight
116

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-07394-4

Organization1:Coal Ash Resources Research Consortium and Energy & Environmental 

Research Center of the University of North Dakota

Commenter1: Loreal V. Heebink

Commenter Type: Academia

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.5 10.5.2.3 10.3.4 10.5.1.2 10.5.1.5

Comment Excerpt Text:

[See original comment for Attachment A: Summary of Energy & Environmental Research 

Center (EERC) Coal Combustion Product-Related Research.

This summary includes the following sections:

Leaching Characterization

Beneficial Unencapsulated Applications

High CCP Utilization in Europe

Mercury Emission Control Technologies

State Reviews

List of References]

Response: The Agency acknowledges and appreciates the comment. Each of the specific 

comments presented are addressed in the technical discussions supporting the technical 

criteria established in the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-07394-5

Organization1:Coal Ash Resources Research Consortium and Energy & Environmental 

Research Center of the University of North Dakota

Commenter1: Loreal V. Heebink

Commenter Type: Academia

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.3

Comment Excerpt Text:

[See original comment for 7394.2 with Attachment B: Buckley, T.D.; Pflughoeft-Hassett, D.F. 

Review of Texas Regulations, Standards, and Practices Related to the Use of Coal Combustion 
117

Products; Final Report for U.S. Environmental Protection Agency and Headwater Resources; 

EERC Publication 2005- EERC-01-01; Energy & Environmental Research Center: Grand Forks, 

ND, Jan 2005.]

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07394-6

Organization1:Coal Ash Resources Research Consortium and Energy & Environmental 

Research Center of the University of North Dakota

Commenter1: Loreal V. Heebink

Commenter Type: Academia

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.3

Comment Excerpt Text:

[See original comment for 7394.3 with Attachment C: Buckley, T.D.; Pflughoeft-Hassett, D.F. 

Review of Florida Regulations, Standards, and Practices Related to the Use of Coal Combustion 

Products; Final Report for U.S. Department of Energy National Energy Technology Laboratory 

Cooperative Agreement No. DE-AP26-04NT40808; Energy & Environmental Research Center: 

Grand Forks, ND, March 2006.]

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07394-7

Organization1:Coal Ash Resources Research Consortium and Energy & Environmental 

Research Center of the University of North Dakota

Commenter1: Loreal V. Heebink

Commenter Type: Academia

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.3

Comment Excerpt Text:

[See original comment for 7394.4 with Attachment D: Buckley, T.D.; Pflughoeft-Hassett, D.F. 

Review of Pennsylvania Regulations, Standards, and Practices Related to the Use of Coal 

Combustion Products; Final Report for U.S. Environmental Protection Agency Contract No. X1-

83275601, U.S. Department of Energy Agreement No. DE-AP26-05NT51864, and American 

Coal Ash Association; EERC Publication 2007-EERC-03-04; Energy & Environmental Research 

Center: Grand Forks, ND, March 2007.]

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07394-8

Organization1:Coal Ash Resources Research Consortium and Energy & Environmental 
118

Research Center of the University of North Dakota

Commenter1: Loreal V. Heebink

Commenter Type: Academia

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.3

Comment Excerpt Text:

[See original comment for 7394.5 with Attachment E: Buckley, T.D.; Pflughoeft-Hassett, D.F. 

National Synthesis Report on Regulations, Standards, and Practices Related to the Use of Coal 

Combustion Products; Final Report for U.S. Environmental Protection Agency Contract No. X1-

83316201-0 and U.S. Department of Energy Agreement No. DE-AP26-06NT04745; EERC 

Publication 2007-EERC-12-11; Energy & Environmental Research Center: Grand Forks, ND, 

Dec 2007.]

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07394-9

Organization1:Coal Ash Resources Research Consortium and Energy & Environmental 

Research Center of the University of North Dakota

Commenter1: Loreal V. Heebink

Commenter Type: Academia

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.3

Comment Excerpt Text:

[See original comment for 7394.6 with Attachment F: Buckley, T.D.; Pflughoeft-Hassett, D.F. 

Review of North Dakota Regulations, Standards, and Practices Related to the Use of Coal 

Combustion Products; Final Report for North Dakota Industrial Commission, Basin Electric 

Power Cooperative, Great River Energy, and Minnkota Power Cooperative; EERC Publication 

2008-EERC-04-04; Energy & Environmental Research Center: Grand Forks, ND, April 2008.]

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07395-15

Organization1:Texas Coal Combustion Products Coalition (TCCPC)

Commenter1: Michael J. Nasi

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The TCCPC believes that Texas' regulations relating to the management of CCRs are effective 
119

and protective of human health and the environment. There are in fact no "proven" damage cases 

in Texas-the state with the highest CCP production rates. If, however, EPA decides to pursue a 

federal regulatory program, it is essential that the oversight and implementation of the program 

rests with the states. Furthermore, flexibility in key technical aspects, such as liner and 

monitoring requirements, is critical to the proper implementation of such a program. This has 

already been proven effective in the Municipal Solid Waste (MSW) Landfill criteria found at 40 

C.F.R. Part 258.

A. EPA Underestimates the Successes and Capabilities of Existing State Programs

EPA has severely underestimated the authority and willingness of states to regulate CCRs. EPA's 

estimates of low state compliance rates, and diminished effectiveness of a Subtitle D option, is 

simply not supported by the facts EPA's own analysis, and the continual expansion of state 

regulatory programs. As outlined in EPA/DOE 2006 Report, and discussed above, there have 

been dramatic improvement in the management of CCRs [Footnote 37: EPA/DOE 2006 Report 

at S-5.]. Without any federal regulation, liner usage had become "essentially ubiquitous" with 55 

of the 56 new units having liners [Footnote 38: fd. at S-5.]. The vast majority (91 %) of the 

studied units built or expanded between 1994 and 2004 have groundwater monitoring [Footnote 

39: fd. at S-5-S-6.]. 

EPA's underestimation is highlighted by the findings of the Office of Management and Budget 

(OMB), as follows:

"EPA approaches this rulemaking as a means to fill state regulatory gaps. The preamble 

repeatedly cites a need for federal enforcement and permitting. However, of the proven damage 

cases cited, the majority were addressed through state administrative action [Footnote 40: 

Interagency Working Comments at 1.].

"EPA cites existing state regulations as an uncertainty. Given part of the rationale for presenting 

this rule is state regulatory gaps, EPA needs to address this omission and develop a full 

assessment of existing state regulatory regimes rather than the anecdotal presentation in the draft 

proposed rule.”[Footnote 41: Id.].

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 
120

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-07395-3

Organization1:Texas Coal Combustion Products Coalition (TCCPC)

Commenter1: Michael J. Nasi

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

2. Texas Regulations Relating to the Management, Closure and Post-Closure Care of CCR 

Disposal Units Are Comprehensive and Protective of Human Health

In EPA's review of state programs, EPA specifically has targeted Texas as a state with a 

"significant gap" in existing state regulation [Footnote 13: Id. at 35,15l.]. The foundation of this 

statement is evidently based on the fact that Texas does not require a "permit" for on-site waste 

management. By its own admission, EPA "lacks any real details regarding how states, in 

practice, oversee the management of these materials when treated as wastes”[Footnote 14: Id. at 

35,152.]. The TCCPC believes that EPA's conclusion with regards to the Texas program is 

directly attributable to such lack of information. EPA has failed to fully investigate, and 

understand, the extensive regulatory structure controlling the handling and disposal of CCRs in 

Texas.

The TCEQ administers laws pertaining to the management and disposal of industrial solid waste 

[Footnote 15: The term "solid waste" is defined as "garbage, rubbish, refuse, sludge from a waste 

treatment plant, water supply treatment plant, or air pollution control facility, and other discarded 

material, including solid, liquid, semisolid, or contained gaseous material resulting from 

industrial, municipal, commercial, mining, and agricultural operations from community and 

institutional activities." See TEX. HEALTH & SAFETY CODE §361.003(35); see also 30 

TEX.ADMIN. CODE §335.1(138)(A).]. Generators of industrial nonhazardous solid waste (e.g. 

CCRs) are required to keep records of the quantities generated, stored, processed, and disposed 

of on-site or shipped off-site for storage, processing, or disposal [Footnote 16 Id. at § 335.009. 

These records must include:

(A) the description, character, and classification of each waste, and any changes and additional 

information required under § 335.6(c) and (d) of this title (relating to Notification 

Requirements);

(B) the quantity generated;

(C) except for conditionally exempt small quantity generators regulated under § 335.78 of this 

title (relating to Special Requirements for Hazardous Waste Generated By Conditionally Exempt 

Small Quantity Generators), the quantity held in on-site storage as of December 31 of each 

calendar year;

(D) the quantity processed or disposed of at each on-site facility unit during the calendar year;

(E) the method of storage, processing, or disposal as described by codes listed on the form or 
121

instructions;

(F) the quantity shipped off-site for storage, processing, or disposal each calendar year, including 

the name, address, and location of each off-site facility and transporter receiving shipments;

(G) the location of all hazardous waste accumulation areas, situated at or near any point of 

generation, where hazardous wastes under the control of the operator of the process generating 

the wastes are placed in containers and initially accumulated without a permit or interim status in 

accordance with § 335.69(d) of this title (relating to Accumulation Time).].

For those facilities where CCRs wil1 be disposed of on-site, the owners/operators must register 

the disposal site with the TCEQ [Footnote 17: fd. at §335.6.]. As part of the registration process, 

various types of information, including information concerning the type of waste management 

unit (e.g. landfill or surface impoundment), waste composition, waste management methods, 

facility engineering plans and specitlcations, groundwater monitoring plans, information related 

to the geology and hydrogeology where the facility will be located, as well as closure and postclosure plans, among others, may be submitted to the TCEQ [Footnote 18: Id.]. The facility 

would also have to deed record the disposal area in the county deeds [Footnote 19:Id. at § 

335.5.]. Once the information is submitted and approved, the facility is designated as a registered 

waste management unit.

The regulatory oversight necessary to ensure that these waste management units are protective of 

human health and the environment is generally performed by the TCEQ in three ways [Footnote 

20: The TCEQ is charged with the duty to "safeguard the health, welfare, and physical property 

of the people and to protect the environment by controlling the management of solid waste ...." 

TEX. HEALTH & SAFETY CODE §361.002(a).]. First, the TCEQ performs an analysis of all 

the above information and submittals (information related to waste composition, waste 

management methods, facility engineering plans and specifications, geologic and hydrogeologic, groundwater monitoring, closure and post-closure plans) during the registration phase. 

In order to promote the proper management, storage and disposal of nonhazardous wastes, the 

TCEQ, pursuant to state regulations, has set forth a series of guidance documents [Footnote 21: 

30 TEX. ADMIN. CODE §335.3.]. These guidance documents provide standards for various 

aspects of the waste management unit (landfills and surface impoundments) and their operationsthe guidance addresses components such as the liner, leachate collection system, cover, 

perimeter containment dikes, slope stability, erosion control mechanisms, hydrologic 

considerations, groundwater monitoring, and maintenance requirements, among others [Footnote 

22: See Technical Guideline No.2, industrial Solid Waste Landfill Site Selection; Technical 

Guideline No.3, Landfills; Technical Guidance No.4, Nonhazardous industrial Solid Waste 

Surface Impoundments; Technical Guidance No.6, Groundwater Monitoring; and Technical 

Guidance No. 10, Closure and Post-Closure Cost Estimates.]. The TCEQ's review of the various 

submittals during the registration phase of the process is based on such guidelines and is 

comprehensive. Second, the TCEQ maintains regulatory jurisdiction and enforcement authority 

over the units to ensure that facilities follow through on their commitments to protect human 

health and the environment [Footnote 23: Texas has broad prohibitory language in regulation (30 

TEX. ADMIN. CODE §335.4), the Texas Water Code (TEX. WATER CODE §26.121), and the 

Texas Solid Waste Disposal Act (TEX. HEALTH & SAFETY CODE Ch. 361). Texas' 

enforcement powers extend to discharges on land as well as surface waters and groundwater, 

activities that may create a nuisance, and activities that endanger public health and welfare.]. 
122

Finally, the TCEQ administers a fornlal, thorough review and approval process over the closure 

and post-closure care of the waste management units.

Therefore, proper construction, and operation of waste management units is critical, as all such 

units have to ultimately be "closed" pursuant to the Texas Risk Reduction Program (TRRP).24 

The closure performance standard is set forth in 30 TAC § 350.2(h) as follows:

"The person shall close a waste management facility component in a manner that minimizes or 

eliminates the need for further maintenance and controls. The manner of closure shall also 

minimize or eliminate, to the extent necessary to protect human health and the environment, the 

post-closure escape of waste, contaminants, leachate, run off, or decomposition products to the 

surrounding environmental media."

There are two main parts to this performance standard. The first addresses the overall 

expectations for the unit closure, while the second part addresses the applicability of TRRP to (1) 

the waste within the unit and (2) releases from the unit. If there is a release from the unit, the 

facility would have to address the release and would possibly have to apply the full extent of 

TRRP for the assessment and remediation of the release. A release determination would have to 

be performed, and if a release is confitmed, the entity would have to perform a release 

assessment to determine to what extent the release has migrated from the unit into surrounding 

environmental media, and then perform the necessary remedy. The closure process, therefore, 

includes the managing of the waste in the unit as well as addressing any releases to the 

surrounding environmental media.

Without proper design and construction (and overall adherence to the set of guidelines 

established by Texas), significant groundwater data during operation of the unit, and the 

maintenance of management practice records, closure of waste management units in Texas 

becomes an insurmountable obstacle.

In practice, therefore, information related to construction and operation of the on-site unit is 

submitted to the TCEQ during the registration phase, and as noted, the elements reviewed by the 

TCEQ are precisely the same as those endorsed by EPA in the proposed rules, and include 

information related to waste composition, waste management methods, facility engineering plans 

and specifications, geologic and hydro-geologic, as well as groundwater monitoring. The TCEQ 

also has a set of comprehensive regulations relating to the closure of such units. The intimate 

involvement of the TCEQ in all aspects of the waste management unit, including construction, 

operation, and ultimately closure is a fact that is often overlooked in EPA's critiques of the Texas 

program. Contrary to EPA's belief, the absence of a "pennit" for such units does not equate to 

lack of regulatory requirements. Indeed, the Texas program is comprehensive and protective of 

human health and the environment.

Furthermore, should a facility owner or operator elect to operate a commercial nonhazardous 

disposal facility, the TCEQ imposes a set of comprehensive regulatory requirements, 24 30 TEX. 

ADMIN. CODE. §335.8. TRRP regulations can be found at 30 TEX. ADMIN. CODE Chapter 

350, administered by means of a permitting process [Footnote 25: ld. at Chapter 335, Subchapter 

T.]. Similarly, if the waste management unit is located off-site, it is subject to a permit. The 
123

petmitting process for off-site and commercial facilities is, yet again, comprehensive and 

addresses the same elements endorsed by EPA in its proposed rules.

The TCCPC believes that the TCEQ's registration process for on-site units is comprehensive, as 

it involves the submittal and ultimate review by the TCEQ of detailed information related to the

construction, operation, closure, and post-closure of the unit. Nevertheless, should EPA believe 

that the process currently in place for on-site units in Texas needs to move to a permitting 

process or otherwise be codified in the regulations to make obvious the pre-approval nature of 

the process, the TCCPC is committed to working with the TCEQ and EPA in making any such 

modifications to the current regulations. The TCCPC believes that this type of an initiative 

alleviates any concerns associated with EPA's proposed rules, is more efficient, and most 

importantly, will address the purpose of the proposed rules-which after all, is the implementation 

of regulations that eliminates the occurrence of catastrophic releases of CCRs

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-07488-1

Organization1:Illinois Environmental Protection Agency

Commenter1: Scott O. Phillips

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Illinois EPA prefers to regulate coal combustion residuals (CCR) under our existing State 

regulations. We believe that the current Illinois regulations are protective of human health and 

the environment.
124

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-07488-10

Organization1:Illinois Environmental Protection Agency

Commenter1: Scott O. Phillips

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Illinois EPA respectfully requests that USEPA work with the states through such organizations 

as ECOS and ASTSWMO to develop an effective and efficient CCR program that can be 

implemented at the state level.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of 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-2009-0640-07489-4

Organization1:Council of Industrial Boiler Owners (CIBO)

Commenter1: Robert D. Bessette

Commenter Type: Trade Association

Classification: Substantive
125

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

State Subtitle D programs 

EPA has furthered this stigma by not developing regulations for managing CCB in past 

regulatory determinations under Subtitle D, and not assisting the states in developing 

consistently robust Subtitle D, CCB residual waste programs. Unfortunately, this has allowed for 

misinformation and inaccurate descriptions of CCB as “toxic” or “hazardous” when, in fact, 

based on EPA’s own hazardous waste classifications, this material would be neither considered 

nor regulated as a hazardous waste.

What makes more sense is to modify Subtitle D regulations to mirror exisiting exemplary state

programs that incorporate leaching test data to determine the best management strategies for 

CCBs including criteria for beneficial use in manufacturing; highway construction; structural 

fills (that integrate both design and a supported end-use); and the use of CCBs in mine land 

reclamation. States have developed their own programs that are adapted to the particular 

characteristics of the locale and wastes being handled. As proposed, EPA’s Subtitle D proposal 

needs significant revisions to be effective and build on existing, successful state programs.

There is an existing, effective structure for CCB regulation. This permits continuing flexibility 

and adaptability to local conditions. Additional disposal requirements can be developed for 

nationwide application without reclassifying CCBs as Subtitle C waste. CCBs, based on their 

chemical, physical and leaching characteristics, have the potential to produce benefits when 

properly managed in the reclamation of coal mine lands, mine subsidence control, mine-fire

control, the amelioration of mine drainage problems as well as many other engineering, 

construction and manufacturing solutions.

Many CIBO members operate facilities in states with longstanding, fully developed, 

environmentally successful CCB programs. As recognized by the National Academy of Sciences 

in its Report referenced bellow, it is possible that some states do not have fully developed 

management programs and therefore could benefit from clearer federal direction and support. 

CIBO members are strongly vested in the ability to work with their state regulators who are 

knowledgeable in the local geology, hydrology, climatology, ecology, and other factors unique to 

the their state to develop management practices that incorporate appropriate site-specific factors.

CIBO strongly advocates continuing flexibility in state-developed CCB management programs 

which allow states to address characteristics unique to their particular environment. Data 

compiled for this rule demonstrate that improved state oversight, changing practices and 

knowledge gained from past practices have all led to greatly improved environmental protection. 

A joint US Department of Energy (DOE)/EPA Report in 2006 concluded that states are working 

to ensure that CCB is properly managed.[Footnote 2: Coal Combustion Waste Management at 

Landfills and Surface Impoundments, 1994 – 2004, DOE/PI-0004, available at 

www.osti.gov/bridge. (DOE/EPA Report)] As recently as April 2009, DOE again concluded that 

Subtitle C regulation of these wastes is “unwarranted.” [Footnote 3: April 1, 2009 DOE 

Memorandum to EPA Resource Conservation and Recovery Director Matt Hale, EPA-HQRCRA- 0640-0084.] As contemplated by Congress in establishing the federalism structure of 

RCRA, states look to EPA to provide leadership in addressing the proper management of CCBs.

EPA worked with an inclusive group of stakeholders that included states, industries, utilities, 

waste management entities, environmental groups and others to develop and publish the 1999 
126

“Guide for Industrial Waste Management” (EPA Guide). [Footnote 4: EPA, Guide for Industrial 

Waste Management ,EPA-HQ-RCRA-1999-0050.] The EPA Guide provides specific guidance 

on residual waste management, covering a full range of industrial wastes. It establishes 

objectives for environmental protection and provides a reasonable, risk-based, tiered approach to 

managing waste, which is an approach that CIBO strongly advocates be part of any state or 

federal program. At the time of its development, participants expected the EPA Guide to serve as 

the basis for state regulatory programs. The EPA Guide and RCRA itself, recognize that all 

industrial wastes are not the same and each type must be carefully characterized to determine 

appropriate handling methodologies.

The known variability among wastes is further supported by the independent evaluation of the 

variation of CCR characteristics undertaken by the National Academy of Sciences (NAS) in its 

Report “Managing Coal Combustion Residues in Mines.” (NAS Report).[Footnote 5: National 

Academy of Sciences (2006), Managing Coal Combustion Residues in Mines, Washington, D.C., 

EPA-HQRCRA- 2008-0329-0500.]While the NAS Report focused on the practice of minefilling 

with CCB, the overarching issues of environmental impact are the same. EPA should consider 

the contents of the EPA Industrial Waste Guide, rather than the categorical approaches proposed 

in this rule, and allow for differentiation of disposal methodologies that reflect science and 

measurable environmental consequences

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-07533-6

Organization1:Nebraska Department of Environmental Quality (NDEQ)

Commenter1: David B. Haldeman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

Nebraska already has a comprehensive and protective regulatory program in place for the 

responsible management of these materials. We respectfully request that EPA maintain the 

Bevell Amendment and adopt an approach under Subtitle D for the management of CCRs in its 

final rule.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 
127

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-07533-7

Organization1:Nebraska Department of Environmental Quality (NDEQ)

Commenter1: David B. Haldeman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The State of Nebraska has a well established permitting and compliance program that has 

effectively managed CCR for seventeen years. The Nebraska Department of Environmental 

Quality (NDEQ) is the lead state agency that implements the permitting and compliance 

program. The statutory basis for the program is found in the Nebraska Environmental Protection 

Act, the Integrated Solid Waste Management Act, and the Solid Waste Disposal Act.

The Environmental Protection Act, among other things, establishes the NDEQ’s rule making 

authority, permitting authority, and enforcement authority. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-07608-2

Organization1:

Commenter1:Sarah DePriest

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:
128

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

More than two dozen individual state regulatory agencies - environmental regulatory agencies, 

state Departments of Transportation (DOTs) and public utility commissions - favor nonhazardous coal ash regulation. State environmental regulatory programs have become more 

robust and have the regulatory infrastructure to implement a federal Subtitle D program for coal 

ash. A 2006 EPA/DOE report documents the pronounced improvement in the management of 

coal ash by utilities at new and expanded disposal facilities and strengthened regulatory 

oversight of coal ash disposal by state regulatory agencies. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

____________________________________________________________________

Comment Number: EPA-HQ-RCRA-2009-0640-07791-22

Organization1:Georgia Department of Natural Resources (GAEPD)

Commenter1: Jim Brown for Mark Smith

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.4.5 7.1.2.4

Comment Excerpt Text:

EPA requests comment, at 75FR35218, regarding the cost/benefit estimation contained in the 

Regulatory Impact Analysis. GAEPD's evaluation is that the avoided costs due to "Catastrophic 

Failure" are skewed and significantly over-estimated based solely on the Kingston, TN incident. 

There have been no similar incidences, before or since, relating to CCR impoundments. The root

cause analysis developed for TVA regarding the Kingston incident, summarized at 75FR35150, 

states that the failure occurred through successive expansions and the inclusion of " ... a thin, 

weak layer of fly ash ('slime') on which (the dike) had been founded (that) failed by sliding." 

GAEPD design requirements for Subtitle D units, and our NPDES and Safe Dams programs, 

have procedures and permit requirements in place to prevent just such a failure.

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

referred to volume XII of this document that addresses comments on the RIA.

Comment Number: EPA-HQ-RCRA-2009-0640-07791-7

Organization1:Georgia Department of Natural Resources (GAEPD)

Commenter1: Jim Brown for Mark Smith

Commenter Type: State Government
129

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

GAEPD rules specifically define CCRs as "Industrial Waste" at 391-3-4-.01(27) and "Solid 

Waste" at 391-3-4-.01(65). 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07791-8

Organization1:Georgia Department of Natural Resources (GAEPD)

Commenter1: Jim Brown for Mark Smith

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

GAEPD rules require that, " ... no person shall engage in solid waste handling or construct or 

operate a solid waste handling facility .. . without first obtaining a permit from the Director 

authorizing such activity." [391-3-4-.02(1)] However, the rules also provide for discretion in 

issuing permits; " . .. the Director may (emphasis supplied) issue permits for solid waste handling 

provided the application is judged complete and meets the requirements of the Georgia 

Comprehensive Solid Waste Management Act and these Rules." [391-3-4-.02(2)]

• New permits and major modifications of existing permits are subject to the " ... siting and 

design standards .. .in effect on the date the modification (or new permit) is approved." [391-3-4-

.02(8)] Criteria for Siting are found at 391-3-4-.05, and Criteria for Design and Operation are at 

391-3-4-.07.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07791-9

Organization1:Georgia Department of Natural Resources (GAEPD)

Commenter1: Jim Brown for Mark Smith

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.2 4.4.4.3 4.4.4.4 4.4.4.5 4.4.4.6

Comment Excerpt Text:

Siting criteria include: requirements if siting in a 100-year floodplain [391-3-4-.05(1)(d)]; 

restrictions on siting in wetlands [391-3-4-.05(1)(e)]; restrictions on siting " ... within 200 feet 

(60 meters) of a fault that has had displacement in Holocene time ... " [391-3-4-.05(1)(f)]; 
130

restrictions on siting in " ... seismic impact zones ... " [391-3-4-.05(1)(g)]; and restrictions on 

siting in " ... unstable areas ... " [391-3-4-.05(1)(h)]. These requirements are virtually identical to 

the proposed 40CFR257.60-64.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07793-14

Organization1:South Dakota Department of Environmental and Natural Resources

Commenter1: Vonni Kallemeyn

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 11.2.5

Comment Excerpt Text:

In summary, in South Dakota we believe we have in place the statutes, rules, and permitting 

authority necessary to regulate the safe management and disposal of CCR. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-07793-3

Organization1:South Dakota Department of Environmental and Natural Resources

Commenter1: Vonni Kallemeyn

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 11.2.5

Comment Excerpt Text:

South Dakota has a strong solid waste program and we have managed CCR in a responsible 

manner for more than three decades.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
131

________________________________________________________________________________

Comment Number: EPA-HQ-RCRA-2009-0640-07797-3

Organization1:Granger III and Associates, LLC (Granger)

Commenter1: Ralph Nurenberg

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

It is our position that Michigan's regulation of CCR materials is both effective and pragmatic and 

could, along with other states with effective CCR regulations, serve as a model to better develop 

national requirements.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-07798-1

Organization1:Citizens Against Ruining the Environment

Commenter1: Ellen Rendulich and Sandy Burcenski

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 1.4

Comment Excerpt Text:

We have two polluting coal fired power plants in Will County, owned by Midwest Generation; 

one of these plants is in Romeoville and one here in Joliet. They are both grandfathered from the 

Clean Air Act and since 1996 the Joliet facility has been exempt from the IL Class 1 

Groundwater Standards. The Joliet facility also ranks in the top 40 for contaminated sites in the 

United States. 
132

there is an unlined coal ash landfill known as Lincoln Stone Quarry also owned by Midwest 

Generation who has been dumping coal ash and slag in this quarry since 1962. Since 1995 the 

IEPA has been aware that this landfill is the source of toxic contaminates and heavy metals such 

as "arsenic" which have already been detected off site. They also know there is a strong 

indication that these contaminates and toxic metals can potentially impact our drinking water. 

According to the report by Environmental Integrity, the IEPA has allowed “ground water with 

concentrations up to 52 times standards for protection of public health to flow off site” from 

Midwest Generation’s unlined coal ash landfill. Why are they allowing them to continue 

poisoning our water?

Why have exemptions, adjusted and relaxed standards been given to this unlined coal ash

landfill? There are approximately 94 private wells within a one mile radius of this facility and the 

majority of Will County’s water is well water. What is the IEPA doing to protect these wells, our 

groundwater and the DesPlaines River from contamination? How do we know that we aren’t 

contaminated already? We’d like to reiterate, that while the IL Environmental Protection Agency 

has known, since 1995, that contamination is flowing toward our groundwater they have not 

forced them to comply to the same standards as other industries. What do they intend to do to 

protect our groundwaters? 

IEPA’s own reports confirm contamination has flowed off site, and may have already 

contaminated private wells and major waterways, and up to this point has done has done nothing 

to rectify past exceedances. It is obvious that the IEPA is not doing their job to protect the health 

of the public and the environment. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-07799-3

Organization1:Municipal Electric Authority of Georgia (MEAG Power)
133

Commenter1: Brad Spooner

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Georgia already has a state regulatory program with permitting, liner, and groundwater 

monitoring controls for CCBs similar to those under the Subtitle D and Subtitle D-prime 

approaches.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-08211-1

Organization1:North Dakota Department of Health

Commenter1: L. David Glatt

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The North Dakota Department of Health (NDDoH) regulates waste management activities in the 

state and has primacy for all of the RCRA programs. Our state initiated regulatory control of 

CCRs as a solid waste thirty years ago. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 
134

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-08211-27

Organization1:North Dakota Department of Health

Commenter1: L. David Glatt

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

References: 

North Dakota Department of Health, "Coal Combustion Waste -North Dakota Regulatory 

Perspective" 2002; 

http://www.ndhealth.gov/wm/Publications/CoalCombustionWasteRegulatoryPerspective.pdf

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 
135

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-08211-3

Organization1:North Dakota Department of Health

Commenter1: L. David Glatt

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1

Comment Excerpt Text:

To this point, the state of North Dakota promulgated standards essentially equivalent to the 

currently proposed Subtitle D option over twenty years ago with location standards and 

requirements for operation, design, groundwater monitoring/corrective action, closure/postclosure, and financial assurance. The program has provisions for public participation and broad 

provisions for open records. To our knowledge, no case of impact to a public or private water 

supply well exists, and the NDDoH seldom receives concerns from state citizens on CCRs. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08218-13

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.3

Comment Excerpt Text:

Beginning in 2007, Maryland has proposed and implemented new rules for CCR generators 

including reporting, new rules for disposal, obtained and implemented legislative authorization 

for a per ton fee to operate the programs, and is now developing rules to govern safe beneficial 

reuse of CCRs. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08218-2

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.3
136

Comment Excerpt Text:

Beginning in 2007, Maryland proposed and implemented new rules for CCR generators 

including reporting and disposal, obtained and implemented legislative authorization for a per 

ton fee to operate the program, and is now developing rules to govern safe beneficial reuse of 

CCRs.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08218-46

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.5.2.2

Comment Excerpt Text:

Maryland examined the issue of transportation in a recent rulemaking which imposed standards 

on the transportation of coal combustion byproducts in Maryland (see COMAR 26.04.10.03, 

which became effective in October 2010, which can be viewed at 

http://www.dsd.state.md.us/comar/comarhtml/26/26.04.10.03.htm. The problem encountered in 

transportation is not whether the material is transported to a legitimate disposal facility; instead, 

it is whether the material is blowing off the trucks, or being dragged out onto public roads from 

the loading or disposal sites, and liberated into the air by traffic or washed off by precipitation 

into streams. In order to address these concerns, Maryland now requires that: 

“(a) Vehicles transporting coal combustion byproducts shall be fully enclosed, or fully 

enclosed on all sides and covered with a firmly secured canvas or other covering, so as to 

prevent any coal combustion byproducts from blowing off, falling off, or spilling out of the 

vehicle, or the coal combustion byproducts shall be handled and transported in sealed 

containers designed for transportation of powdery solids; 

(b) Before leaving a site where coal combustion byproducts are loaded or offloaded, vehicles 

transporting coal combustion byproducts shall be rendered clean and free of excess material or 

debris that could blow off, fall off, or spill during transportation; 

(c) Coal combustion byproducts being loaded into or offloaded from a vehicle shall be 

sufficiently moistened or otherwise conditioned or contained to prevent particulate coal 

combustion byproducts from becoming airborne or causing fugitive air emissions; 

(d) Following loading but prior to any transportation of coal combustion byproducts, the 

transporter shall inspect each vehicle that contains coal combustion byproducts to ensure that the 

requirements of §B(4) of this regulation are met; 

(e) A transporter of coal combustion byproducts shall maintain an inspection log for each vehicle 

that shall be maintained in the vehicle at all times during transport of coal combustion 

byproducts, and for 30 days thereafter that shall certify compliance with the standards in §B(4) 

of this regulation; and 

(f) An inspection log maintained by a transporter of coal combustion byproducts shall consist of 

an entry for each inspection of a vehicle that has been conducted by the transporter. An 

inspection entry shall consist of the following information: 
137

(i) The date the inspection occurred; 

(ii) The time of day the inspection occurred; 

(iii) The name of the person conducting the inspection; 

(iv) The condition of the vehicle and any corrective action required to ensure compliance with 

this subsection, for example, "truck cleaned and covered" for a vehicle that meets the 

requirements, or "cover OK, right side wheels hosed off again" for a vehicle that was properly 

covered but which required recleaning of wheels on the right side; and 

(v) The signature of the individual certifying compliance with §B(4) of this regulation.” 

These conditions are considered adequate to insure that the materials are managed in an 

adequately protective manner, without the incredible additional burden that regulating the 

materials under the manifest rule would entail for both the haulers and the States. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08218-74

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Maryland has undertaken an extensive program to adopt comprehensive regulations governing 

CCR disposal, transportation, and use in mine reclamation. New regulations were promulgated in 

December 2008, and additions and amendments have refined and expanded the scope in several 

actions since that time. The key piece of the regulatory framework is COMAR 26.04.10, 

Management of Coal Combustion Byproducts, which can be viewed in its current form at 

http://www.dsd.state.md.us/comar/SubtitleSearch.aspx?search=26.04.10.*. It also references 

other pertinent regulations that govern industrial waste landfills including CCR landfills, and 

mine reclamation activities including placement in coal and noncoal mines. More information 

concerning the adoption of these regulations, including all of the comments received and MDE’s 

responses to those comments are available on our website at 

http://www.mde.state.md.us/programs/Land/SolidWaste/CoalCombustionByproducts 

/Pages/Programs/LandPrograms/Solid_Waste/ccbs/index.aspx. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08218-76

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
138

Other Sections: 10.5.2.3

Comment Excerpt Text:

The Department would be willing to provide additional information concerning the composition 

and activities of the program as requested. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08218-77

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

the Department has recently undertaken an extensive program to regulate CCRs. Implementation 

of the program occurs through the Land Management Administration’s Mining and Solid Waste 

Programs, the Air and Radiation Management and Water Management Administrations, as well 

as the Office of the Attorney General. In addition to undertaking permitting, monitoring, 

inspection, and closure plan and field evaluations, the Department is currently engaged in a 

number of enforcement actions involving CCR sites.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08218-81

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 8.6.1

Comment Excerpt Text:

The Department affirms that the BBSS site in Anne Arundel County, Maryland, which was cited 

by EPA as a site with confirmed impact due to CCRs, is in fact such a case. However, 

commenters have used this example to support the position that the States have not effectively 

addressed coal combustion residuals, and that the only alternative is to regulate these materials as 

hazardous wastes. 

The Department points out that EPA’s discussion of this case in the Preamble makes reference to 

a Consent Order that included a significant penalty as well as remedial, closure, and postclosure 

uses that require cleanup and closure that is protective pf public health and the environment. 

While this site does show that Maryland’s previous regulatory requirements needed to be 
139

improved, it did not show that that CCR needed to be regulated as a hazardous waste. At the time 

of that enforcement action, Maryland had already initiated a process to promulgate new 

regulations for the disposal, storage, transportation, and use in mine reclamation that include 

permitting, design, monitoring and closure requirements that are very similar to and in some 

areas more protective than the proposed federal regulations. This approach, as well as the success 

of the 40 CFR 258 regulations governing municipal waste landfills, demonstrates that 

designation as a hazardous waste is not the only mechanism available to ensure that public health 

and the environment are protected from the potential adverse effects of coal combustion 

residuals. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-08221-7

Organization1:NextEra Energy, Inc.

Commenter1: Tomey Tuttle

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In Georgia CCR is identified as an industrial solid waste and regulated under the solid waste 

management regulations. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08234-2

Organization1:Colorado Department of Public Health and Environment

Commenter1: Charles G. Johnson on behalf of Joe Schieffelin

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

2) Background: .. 

a) The Solid and Hazardous Waste Program regulates all disposal and beneficial re-use of Coal 

Combustion Residuals in Colorado. 
140

b) Colorado has representative analytical data on the Coal Combustion Residuals produced in 

Colorado and no data has ever indicated levels of contamination close to those that would make 

the residuals hazardous waste. 

c) Colorado has ground water monitoring data around Coal Combustion Residuals de-watering 

and disposal areas and no data indicates a release to ground water has occurred. 

d) However, if a release were to occur: Colorado has enforcement authority to rapidly and 

effectively deal with non-compliant situations, including releases to soil, ground water, surface 

water, and exposures to people. This includes administrative order authority with injunctive 

relief, corrective action authority, and penalties up to $10,000/day/violation. Colorado actively 

uses these authorities in implementation of our Solid Waste Program. 

e) Through this same regulatory construct, Colorado safely and effectively regulates municipal 

solid waste every day, a waste stream with higher hazards than Coal Combustion Residuals 

because it includes household hazardous wastes, heavy metals, and organic, acidic, and alkaline 

materials.

Response: The Agency acknowledges and appreciates the comment. Because EPA is deferring 

its final Bevill Determination, EPA has not responded to comments that pertain exclusively to 

that issue. However EPA has responded to significant comments that relate to topics that are 

otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the 

damage cases to support certain aspects of the technical requirements, EPA has responded to 

comments relating to the accuracy of the facts involved in the damage cases. EPA has not, 

however, responded to many comments on state programs because the Agency has made no 

final conclusions on the adequacy of those programs and is not relying on state programs to 

support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2009-0640-08243-1

Organization1:

Commenter1:Gary Kuklish, et. al.

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 6.1.1 3.1.1

Comment Excerpt Text:

LaBelle, Pennsylvania is a very small community of approximately 100 people. Most have lived 

in this town all of their lives: they love their homes, families and the rolling Monongahela River 

valley. Their once quiet community is being invaded by an insidious problem – toxic coal ash –

that’s raining down on them from the sky, leaching into their water, and causing them to worry 

about their health and the health of their children and grandchildren. In the past five years, 38 of 

their neighbors, friends and family members have been diagnosed with cancer: some have died. 

For decades, the PA DEP has advocated for the placement of this dangerous waste. In fact, the 

PA DEP was instrumental in allowing the massive LaBelle site to become the massive coal ash 
141

dump site it is today. 

Residents firmly believe that without the federally enforceable C designation, the PA DEP would 

return to status quo – allowing the LaBelle site to continue to accept more toxic coal ash for 

decades to come. 

The undersigned residents respectfully seek the Subtitle C option – federally enforceable rules to 

protect them from the harmful pollution caused by toxic coal ash. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-08251-27

Organization1:Massachusetts Department of Environmental Protection

Commenter1: James C. Colman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.3

Comment Excerpt Text:

The Massachusetts solid waste regulations include extensive beneficial use regulations that were 

completely rewritten in 2005 (see Appendix B). The BUD program only applies to materials 

defined as solid wastes. The BUD program does not apply to materials regulated as hazardous 

waste, since they are regulated under different statutory and regulatory authority in 

Massachusetts. The definition of "Solid Waste" in the regulations specifically excludes 

"hazardous wastes as defined and regulated pursuant to 310 CMR 30.000", which are the 

Massachusetts hazardous waste regulations. There is no parallel BUD program in the hazardous 

waste program. To adopt a parallel BUD program under the hazardous waste regulations would 

require a lengthy regulation development process (e.g. new waiver regulations) that would likely 

take several years. 

The BUD regulations include four categories of BUDs, the applicability of which depends on the 

type of use to which a material is to be put. In addition, BUD reuse standards were developed to 

limit the contaminant levels in secondary materials depending on the type of use and the reuse 

environment. The BUD standards are based on a quantitative risk assessment approach for use of 

secondary materials in restricted and unrestricted applications when evaluating risk. The 

assessment incorporates three methods for establishing criteria for comparison with secondary 

material constituent concentrations. Method 1 incorporates a list of hazardous material values 

that have been calculated based upon a predetermined set of exposure scenarios. Secondary 

materials that contain constituents of concern that do not exceed these values have demonstrated 
142

no significant risk to the public health, safety and the environment. Method 2 may be used to 

derive risk criteria when unavailable in the Method 1 assessment. Method 3 involves an 

assessment of total risk based on site-specific information. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08251-28

Organization1:Massachusetts Department of Environmental Protection

Commenter1: James C. Colman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.3

Comment Excerpt Text:

Solid Waste Approach to Beneficial Use 

Under the Massachusetts solid waste program, a material is a solid waste unless it is reclassified 

through a BUD permit that specifies that the waste is no longer a solid waste as long as the 

material is used in accordance with the conditions of the BUD permit. Any non-authorized use of 

the material would be in violation of the solid waste regulations and the BUD permit and the 

material would revert to classification as a solid waste, requiring proper disposal in accordance 

with the solid waste regulations. 

In addition to benefits the material may provide to a product, beneficial use of the material can 

reduce the volume of solid waste requiring disposal. In a state with less capacity than is needed 

for disposal of all types of solid waste this is an important consideration. For example, beneficial 

use of CCR reduces the mining of materials for cement products and significantly reduces the 

volume of disposal capacity necessary for disposal of CCR. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-08251-3

Organization1:Massachusetts Department of Environmental Protection

Commenter1: James C. Colman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
143

Comment Excerpt Text:

In the Federal Register notice, EPA requested information regarding how coal ash is regulated in 

the states. The Commonwealth of Massachusetts has well developed hazardous waste (Subtitle 

C) and solid waste (Subtitle D) programs that have been in place for decades. These two 

programs have been highly successful in closing and remediating hazardous waste facilities and 

unlined solid waste landfills that existed prior to establishment of the current programs, and 

establishing enviromnentally protective design and performance standards for active facilities. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08251-48

Organization1:Massachusetts Department of Environmental Protection

Commenter1: James C. Colman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Appendix A 

Massachusetts General Law Chapter 111, section 150A

Coal ash exemption paragraph 

Ash produced from the combustion of coal, including but not limited to fly ash and bottom ash, 

shall not be construed as refuse, rubbish, garbage, or waste material under this section when used 

as a raw material for concrete block manufacture, aggregate, fill, base for road construction, or 

other commercial or industrial purpose, or stored for such use. A location where such use or 

storage takes place may be constructed, established, maintained, and operated without being 

construed as a facility or site for a facility under this section, and no assignment or approval from 

the board of health or the department shall be required for such construction, establishment, 

maintenance, or operation; provided, however, the department shall have jurisdiction to 

determine, after notice and hearing, that the establishment or operation of such a location has 

created a nuisance condition by reason of odor, dust, fires, smoke, the breeding or harboring of 

rodents, flies or vermin, or other causes, and to prevent or order abatement thereof; and provided, 

further, that no final disposal of ash produced by the combustion of coal may be accomplished 

by burial of such ash in the ground, other than as base for road construction or fill, unless the 

place where such disposal takes place has been assigned for such disposal by the board of health 

and plans for such disposal have been approved by the department pursuant to this section. The 

department may waive the requirements of the preceding paragraphs of this section and the 

application of any regulations, or portions thereof, promulgated under the preceding paragraphs 

of this section as they may apply to the disposal by burial of ash produced by the burning of coal, 

and shall review and may approve the plans, site and method of storage upon a determination 

that no nuisance is created and damage to the environment is minimal. Use of ash produced from 

the combustion of coal as intermediate cover material over rubbish at sanitary landfill facilities 

may be permitted by assignment of the board of health with approval of the department under 
144

this section. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-08253-35

Organization1:Xcel Energy

Commenter1: Terry Coss

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1

Comment Excerpt Text:

16 State Programs: 

Xcel Energy actively operates CCR landfills and impoundments in three states -Minnesota, 

Wisconsin and Colorado. All three states have programs that govern the design, operation and 

eventual closure of such facilities. Minnesota and Wisconsin are similar in that CCR landfills are 

regulated in much the same manner as other RCRA-D landfill facilities, with a state review and 

permitting process that requires iiners and leachate collection, groundwater monitoring, capping, 

corrective action plans and post closure care. Colorado implements landfill requirements under a 

program involving state and/or localIy reviewed design and operating plans. Colorado has 

significantly different climactic and geologic conditions than either MN or WI, and thus allows 

alternative designs that reflect the arid climate (meaning little leachate generation), passively 

protective characteristics of the location (presence of low permeability natural soils or rock 

formations), and deep groundwater (hundreds of feet). Our design engineers and State and local 

authorities take these and other factors into consideration to ensure the design is protective of 

potable groundwater, human health and the environment. With respect to CCR impoundments, 

MN and WI regulate these under NPDES permit programs, although at our previously described 

Sherco facility, closure after dewatefing is eventually completed under the state solid waste 

program oversight and authority. In Colorado, the few small CCR impoundments we operate are 

primarily regulated under facility NPDES pelanits, although the state also has solid waste surface 

impoundment rules in place with revisions under development (expected to be final in 2011) to 

more broadly regulate surface impoundments of all types. 

The states are in the best position to comment on concerns over dual regulation and 

overlap/conflict with state programs, but as a regulated entity this issue is of great concern to us. 

RCRA-C would be particularly disruptive and for this, as well as numerous other reasons 

described previously, is unworkable and counterproductive. States should continue to take the 

lead in regulating CCRs, given the collective knowledge, wisdom and experience of state and 

local officials and the professional staff engineers, geologists and hydrologists, who have 
145

extensive experience managing CCRs. These experts and authorities are in the best position to 

determine the appropriate design for a CCR management or disposal facility in their area. The 

optimum solution would be for EPA to allow states that have mature and effective programs to 

continue to implement them unchanged without federal interference, and to focus federal efforts 

on those states that are lagging. This would best be achieved by issuing a performance-based 

RCRA-D Prime rule that offered the states the flexibility to implement protective standards 

appropriately tailored to local circumstances, such as area geologic and climatic conditions.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-08261-1

Organization1:Black Warrior Riverkeeper, Inc.

Commenter1: Eva Dillard

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 6.1.1

Comment Excerpt Text:

The surface impoundments are at three of Alabama Power Company’s coal-fired power plants 

near the Black Warrior River and its tributaries: Miller Steam Plant, Gorgas Steam Plant and 

Greene County Steam Plant. These steam plants are recognized as among the dirtiest nationwide. 

Miller Steam Plant, on the Locust Fork of the Black Warrior, emitted more mercury in 2007 than 

any other coal-fired power plant in the country, according to EPA data compiled by the 

Environmental Integrity Project. Gorgas Steam Plant ranked 28th in this category (Total Mercury 

Pounds Emitted: 2007). In the category of "Top 50 US Power Plant Mercury Emitters by Pounds 

per GWh: 2007" Greene County Steam Plant ranked 8th, Miller Steam Plant ranked 15th, and 

Gorgas Steam Plant ranked 19th. The ash impoundments at each of these facilities are unlined 

and largely unregulated.1 To our knowledge, there is no groundwater monitoring being regularly 

performed at any of them. The only groundwater testing and monitoring apparent and available 

in the ADEM electronic permit files is in response to specific spills, not as a regular component 

of an environmental compliance plan. The Black Warrior River and its tributaries are a 

tremendous natural resource for the area. The National Park Service has rated the Black 

Warrior’s three forks in the top 2% of United States streams for “outstandingly remarkable 

values.” The river’s Sipsey Fork is Alabama’s only federally designated Wild and Scenic River. 

The Black Warrior River watershed is home to 127 freshwater fish species (3 of which are 

federally listed as endangered), 46 species of mussels (5 of which are federally listed as 

endangered), 15 turtle species (1 of which is federally listed as threatened), an endangered snail, 

and numerous other aquatic animals. The three forks of the Black Warrior River supply around 

half the drinking water for the Birmingham area, Alabama’s largest population center. The upper 
146

Black Warrior River, which is downstream of Miller and Gorgas, supplies drinking water to 

large areas in Jefferson County (the most populous county in the state), the city of Bessemer, and 

more. The Black Warrior River watershed is a popular destination for outdoor recreation of all 

kinds, including fishing, swimming, paddling and boating. The river is also heavily relied upon 

for commercial navigation and industrial process water, making it a silent giant in the state's 

economy. 

The Gorgas Ash Pond Dam 

The Gorgas Ash Pond Dam is located on Rattlesnake Creek, a tributary of the river’s Mulberry 

Fork, and constructed of dirt and rock. This impoundment was first put into service in 1954. It 

has been expanded twice, first in 1979 and again 2007. According to Alabama Power, it is not 

known whether licensed engineers were involved in its initial construction. When it was last 

measured in 2009, the impoundment covered 420 acres and had the capacity to store 

approximately 17,342,755 cubic yards of ash. The dam for the impoundment is measured to be 

140 feet high and it is sited on Rattlesnake Creek just prior to its confluence with the Mulberry 

Fork. According to the National Inventory of Dams (“NID”) database, the Gorgas Ash Pond is 

rated a “significant hazard,” that is its failure would lead not only to possible loss of life but to 

likely significant environmental and economic damage.2 No federal or state agency regulates 

the Gorgas Ash Pond Dam; no federal or state agency currently inspects or evaluates the 

Gorgas Ash Pond Dam.3 Because of both agricultural and industrial pollution, the Mulberry 

Fork has less aquatic biodiversity than the other two Black Warrior forks. However, it is home 

for the many residents who live there and the site of significant recreational use by the 

community. Many nearby residents swim, boat and fish in the area. Fisherman cast lures and nets 

in the very slough where the Gorgas Ash Pond discharges. 

The Miller Ash Pond Dam

The Miller Ash Pond Dam, which is an earthen berm, is located on a hillside adjacent to the 

Locust Fork of the Black Warrior River. This impoundment was placed in service in 1978. When 

it was last measured in 2009, the impoundment covered 341 acres and had the capacity to store 

approximately 21,951,362 cubic yards of ash. The dam for the impoundment was measured to be 

170 feet high. According to the National Inventory of Dams (“NID”) database, the Miller Ash 

Pond is rated a “low hazard,” which means that its failure would most probably not lead to loss 

of life but would result in significant environmental and economic damage. No federal or state 

agency currently regulates the Miller Ash Pond Dam; no federal or state agency inspects or 

evaluates the Miller Ash Pond Dam. Upriver of the Miller Ash Pond Dam, the Locust Fork is 

one of Alabama’s longest remaining free-flowing rivers. Just upstream of Miller, the Locust Fork 

enters the upstream end of Bankhead Lake, a riverine impoundment created by Bankhead Dam 

far downstream. The Locust Fork around Miller is a remote and scenic stretch of mostly forested 

river where wildlife is common. This area is home to a number of residents, has several boat 

launches, and is the site of significant recreational usage including fishing at the mouth of the 

unnamed tributary where the ash pond discharges. Upon information and belief, the Miller Ash 

Pond Dam is constructed on top of the headwaters of an unnamed tributary to the Locust. As a 

result, there is a constant seep from the toe of the dam, which allows not only the migration of 

pollutants into the adjacent wetlands, unnamed tributary and he Locust Fork but also has the 
147

potential to undermine and destabilize the base of the dam. 

The Greene County Ash Pond

The Greene County Ash Pond, an earthen berm enclosing the entire ash disposal area, is located 

on a bend of the lower Black Warrior River. The impoundment was placed in service in 1964 

and expanded in 1996. It is not known whether licensed engineers were involved in its initial 

construction. When it was last measured in 2009, the impoundment covered 474 acres and had 

the capacity to store approximately 8,600,000 cubic yards of ash. The dam for the impoundment 

was measured to be 25 feet high. The Greene County Ash Pond is not listed in the NID database, 

perhaps because by construction and location it is less of a dam and more of a vast bermed 

disposal area. No federal or state agency currently regulates the Greene County Ash Pond; no 

federal or state agency regularly inspects or evaluates the Greene County Ash Pond. This bend 

in the river is the site of numerous wetlands, a number of which border the disposal area. Upon 

information and belief, the Greene County Ash Pond is constructed on wetlands, creating yet 

another complication. The unmonitored migration of water from the unlined ash pond to the 

wetlands and then to ground and surface water is a very real possibility. The lower Black 

Warrior is a treasure trove of fossils dating from the Cretaceous Period and a popular area for 

geology buffs. Like the Mulberry and Locust Forks, it is the site of significant recreational use 

and also subsistence fishing. 

Comments and Conclusions 

In January 2009, the Institute of Southern Studies compiled a list of the 100 most polluting coal 

plants in the United States in terms of coal combustion waste stored in surface impoundments.4 

The data came from the EPA's Toxics Release Inventory (TRI) for 2006, the most recent year 

available. Gorgas Steam Plant ranked number 7 on the list, with 2,888,290 pounds of coal 

combustion waste released to surface impoundments in 2006. Miller Steam Plant ranked number 

15 on the list, with 2,160,349 pounds of coal combustion waste released to surface 

impoundments in 2006. Greene County Steam Plant ranked number 30 on the list, with 

1,343,973 pounds of coal combustion waste released to surface impoundments in 2006. 

We are understandably concerned about the presence and proximity of these huge surface 

impoundments to the Black Warrior River and its tributaries. A breach at Miller or Gorgas would 

release a tidal wave of CCRs and contaminated water that would inundate and devastate 

wetlands, streams and rivers for years to come, harming habitat, aquatic life, water quality, and 

all the recreational uses of the river. While a slightly less dramatic threat because of its flatter 

topography, the Greene County Ash Dam would contaminate the area’s streams and sensitive 

wetlands with similar devastation. The very size of the three Alabama impoundments suggests 

that such any such breach or spill could dwarf the size of the catastrophic TVA Kingston 

release.5 

While these three surface impoundments of CCRs present a clear and immediate threat to the 

Black Warrior, that threat is now exacerbated by the installation of scrubbers at two of the three 

steam plants. Currently, Miller Steam Plant has three scrubbers on its four smokestacks and by 

early 2011 will have scrubbers on all stacks. While scrubbers have been partially installed at 

Gorgas, Alabama Power continues to study a different solution for the older parts of that facility 
148

as well as for Greene County Steam Plant. While helping to reduce air pollution, the use of the 

scrubbers means the capture of even more toxic pollutants in CCRs for disposal in surface 

impoundments. To cite EPA’s Mercury Roadmap, we believe one environmental problem (air 

pollution) is merely being traded for another (increased capture of CCRs that are stored in 

surface impoundments for “treatment” and then discharged to local waterways).6 You might 

expect that, with the increased pollutant loads in the coal slurry as a result of the scrubbers, the 

relevant state NPDES permits are being modified to include ever more stringent monitoring 

requirements and discharge limitations. They are not. In fact, ADEM monitors or limits very few 

pollutants known to be constituents of coal ash by the terms of the NPDES permits it has written 

for the three steam plants in the watershed. 

A review of the near identical permits for the three facilities demonstrates a disturbing lack of 

requirements to protect the public’s health. For the wastewater discharge from these three coal 

ash ponds, the only parameters subject to permit limits are pH, oil and grease and total suspended 

solids. The three facilities are also required to conduct toxicity testing by the permit terms. 

Additionally, Miller Steam Plant has a permit limit for zinc. Those are the only limits imposed 

by the permits, even though coal ash is known to contain heavy metals and other toxic pollutants. 

Without adequate monitoring, testing and discharge limitations for the wastewater discharges 

that occur daily from these plants in large volumes, the public’s health, water quality, and 

wildlife are not being adequately protected. Moreover, local residents whose health may be 

affected do not have sufficient information available to them in the permit regulatory files to 

determine whether the ash ponds may pose a risk to their health. 

We believe the poor regulation of coal ash impoundments in Alabama offers a textbook case of 

why EPA must regulate CCRs as hazardous waste under Subtitle C of RCRA. Without the 

stronger implementation and enforcement requirements of Subtitle C, public health and 

environmental protection in our state will continue to suffer, just as it does now.7 Currently, we 

are at the mercy of whatever Alabama Power chooses to do with their aging, unlined and largely 

unregulated impoundments. Moreover, our state agency ADEM does not write NPDES permits 

that protect the public’s health. Given the very real risks associated with CCRs, that is 

unacceptable. EPA must promulgate stronger regulations that set out clear enforceable measures 

that protect the public’s health and the environment. 

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

referred to Units XI of the preamble for a discussion of damage cases. The commenter is also 

referred to the preamble to this rule for a comprehensive discussion of the technical 

requirements that are being promulgated for CCR landfills and surface impoundments.

Comment Number: EPA-HQ-RCRA-2009-0640-08261-7

Organization1:Black Warrior Riverkeeper, Inc.

Commenter1: Eva Dillard

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
149

Comment Excerpt Text:

Alabama has a long and troubled history with the coal industry, which has regarded human and 

environmental injury as a natural and unavoidable cost of doing business rather than a conscious 

choice. We have the unfortunate distinction of being the last state to end the use of convict mine 

labor, where the sacrifice of the poorest and least powerful among us was regarded as merely 

inevitable and necessary. The Bevill Amendment, which up until now has shielded CCRs from 

appropriate regulation under RCRA, bears the name of former Alabama Rep. Tom Bevill, who 

championed the amendment as a favor to the state’s coal industry. Even today, our state 

regulatory agency ADEM is simply not up to the task of ensuring that the public interest (rather 

than the interests of coal companies and power producers) is paramount. The unfortunate legacy 

of coal continues in other ways in Alabama today, as the citizens of Perry County are burdened 

with the disposal of toxic CCRs from the TVA Kingston spill. EPA acknowledges that it is too 

often the low-income and minority populations, like the citizens of Uniontown in Perry County 

who disproportionately shoulder the burden of coal-fired power plants and toxic ash 

impoundments. The only way to begin to shift for that balance is for EPA to effectively regulate 

CCRs under Subtitle C.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans.

Comment Number: EPA-HQ-RCRA-2009-0640-08690-3

Organization1:

Commenter1:Greg A. VanDerwerker

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 6.1.3

Comment Excerpt Text:

I live in South Carolina where 12 coal fired electric generation stations produce 2.1 million tons 

of coal ash annually. The residual fly ash is placed in 22 ash ponds at 9 coal plants and at least 5 

landfills. All twelve South Carolina coal plants are sited on rivers and lakes that provide drinking 

water to numerous communities. Coal ash contamination is already poisoning drinking water yet 

there are no federally enforceable regulations specific to coal ash and state regulation is minimal 

and ineffective. The Environmental Protection Agency's 2007 risk assessment found 6 of these 

ponds and landfills are unlined, one is clay lined and 6 sites have no leachate system.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 
150

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-08787-34

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Stephen A. Cobb (Al)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In essence, EPA should continue to build upon existing State programs through use of the 

Subtitle D approach. The Subtitle D approach for solid waste management has existed since 

1979 without significant programmatic problems being identified by EPA. State programs meet 

or exceed the 40 CFR part 257 national standards for solid waste disposal facilities. In many 

respects, many State programs already meet or exceed much of the EPA proposed CCR national 

standards.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans.

Comment Number: EPA-HQ-RCRA-2009-0640-08787-36

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Stephen A. Cobb (Al)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

ASTSWMO urges EPA to work with State programs regarding implementation of Subtitle D 

CCR minimum standards. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 
151

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans.

Comment Number: EPA-HQ-RCRA-2009-0640-08849-2

Organization1:Association of Electric Companies of Texas (AECT)

Commenter1: John W. Fainter

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Texas Commission on Environmental Quality ("TCEQ") oversees the design, construction, 

monitoring, reporting and final closure of all CCR disposal facilities. TCEQ's state regulatory 

program ensures the disposal and reuse of CCRs are conducted In a manner that IS protective of 

human health and the environment

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-08852-4

Organization1:Western Organization of Resource Councils (WORC)

Commenter1: Patrick Sweeney

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
152

Comment Excerpt Text:

During the 1970s our members were among the affected citizens who fought and won passage of 

the Surface Mining Control and Reclamation Act. It was clear at that time that a state-by-state 

regulation of coal mining was not going to garner adequate protection for land and water 

resources in the area. Regulation of coal waste has the same problems. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08852-6

Organization1:Western Organization of Resource Councils (WORC)

Commenter1: Patrick Sweeney

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.2

Comment Excerpt Text:

State regulations, in more cases than not, have not been adequate to protect citizens from the 

dangers of coal ash and a lack of monitoring data at other disposal sites makes it nearly 

impossible to believe that additional sites are not polluting. 

For example, North Dakota’s regulation under solid industrial waste has not been sufficient to 

protect its citizens’ health or the environment. The state has been exposed to two cases of proven 

contamination cases, according to your own agency, at the Neal Plant and Coal Creek Station, 

along with two — LeLand Olds and Antelope Valley — from the reports by EIP et al. 

additionally; the state did not take any corrective action in either of the cases according to the 

EIP report. 

During the regulatory process in 2000, the state of North Dakota told then Administrator 

Browner, “The State’s regulatory process meets all the requirements of an effective program and 

yet does not bridle the industry with unnecessary paper work and regulation.” Proven pollution at 

four of the seven coal fired power plant sites in the state hardly qualifies as an “effective” 

program. While North Dakota regulations seemingly have all of the proper requirements in 

place, contamination still has occurred. 

According to the same EIP report, the Big Stone Power plant in South Dakota is also polluting 

the groundwater near the plant: 21 of 25 monitoring wells report exceedences of multiple 

pollutants in two aquifers. South Dakota published a defense of the coal industry on their 

website, after receiving and providing information to requests from the Environmental Integrity 

Project. This is just a further example of our state governments acting more as an agent for the 

coal industry instead of in the best interest of the health of citizens and the environment within 

the state. 

The only coal-fired power plant in Oregon, Portland Gas and Electric’s Boardman Generating 

Facility, has shown to contaminate local groundwater according, to an EIP report. Much like in 
153

North Dakota, Oregon’s regulations on waste have proper monitoring and safeguards in place, 

yet, due to grandfathering, the regulations are not applied to the plant. 

Montana is the final state in the WORC region with a demonstrated case of contamination. 

Currently, the regulation of coal ash in Montana is confusing at best. Most states regulate coal 

ash as solid or industrial solid waste, and, ostensibly, so does Montana. However, the state 

specifically exempts electrical generation from solid waste disposal requirements (75-10-214 

MCA), leaving virtually no one in state government with a clear understanding of which 

regulations apply to coal ash. 

A coal fired power plant in Billings, Montana has been discharging from its bottom ash handling 

system directly into the Yellowstone River under a water discharge permit from the Montana 

Department of Water Quality, which is the only permit we can find related to coal ash for the 

plant. This water has a mile and a half “mixing” zone that ends just before the water intake for a 

community in Billings. The bulk of the bottom ash is then used as mine fill. 

Residents in and near Colstrip, Montana have seen exactly the problems that occur when citizens 

are left to defend their right to a clean environment. In 2003 and again in 2007, lawsuits were 

filed based on ash ponds that are leaching pollutants into groundwater near the Colstrip 

Generating Facility, the second largest coal-fired power plant west of the Mississippi. One of 

these suits was settled, in 2008, for $25 million dollars. 

One of the ponds at Colstrip is 300 acres in size and has been shown to contaminate groundwater 

in a 3⁄4 mile radius from the pond, prompting PPL Montana, the operator of the plant, to turn the 

monitoring wells into pump back wells, not only damaging water quality but also violating water 

rights in an area where every drop of water is precious. 

The cumulative effects of coal near Colstrip have had drastic impacts not only on human health, 

but also the economic livelihood of ranchers in the area. Area ranchers have had to fence off a 

reservoir and windmill to prevent cattle from drinking the water because the toxic level for 

sulfates was 16 times what veterinarians recommend for cattle. The lower population density in 

the West should not warrant less protection than heavily populated cities, where a larger amount 

of citizens would be affected and could more effectively require protections to be made at the 

state level. 

Despite having no cases of known contamination, the state of Wyoming’s regulation of coal ash 

is almost certainly inadequate. The State of Wyoming provides sweeping exemptions for coal 

ash disposal units. According to the Wyoming Industrial Landfill Regulations, coal combustion 

waste landfills over one acre in size are exempt from "engineered containment system" 

requirements, including liners and caps, groundwater monitoring requirements, and monthly 

cover requirements. See Chapter 3, Sections 4(j)(iv)), 6(b)(1)(A)(VI)), and 5(q)(1). According to 

Wyoming regulations, these unlined, unmonitored CCW landfills can be as large as 2.5 million 

cubic yards, equivalent to a capacity of approximately 2.5 million tons of ash. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 
154

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. Finally, the commenter is 

referred to Unit XI of the preamble for a discussion of damage cases.

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

that pertain exclusively to that issue. However EPA has responded to significant comments that 

relate to topics that are otherwise relevant to the final subtitle D regulation. For example, 

because EPA is relying on the damage cases to support certain aspects of the technical 

requirements, EPA has responded to comments relating to the accuracy of the facts involved in 

the damage cases. EPA has not, however, responded to many comments on state programs 

because the Agency has made no final conclusions on the adequacy of those programs and is 

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

Comment Number: EPA-HQ-RCRA-2009-0640-08854-3

Organization1:Environmental Council of the States (ECOS)

Commenter1: R. Steven Brown

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The ECOS resolution cites EPA's repeated assessments in 1988, 1993, 1999, 2000, and 2005 that 

CCR disposal does not warrant regulation as hazardous wastes under RCRA. Moreover, ECOS 

agrees with EPA's finding in a 2005 study that "the regulatory infrastructure is generally in place 

at the state level to ensure adequate management of these wastes." 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-08854-6

Organization1:Environmental Council of the States (ECOS)

Commenter1: R. Steven Brown

Commenter Type: State Government

Classification: Substantive

Comment Category:
155

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1 7.4.1 4.1.1

Comment Excerpt Text:

Resolution Number 08-14 Approved September 22, 2008 Branson, Missouri 

Revised March 23, 2010 Sausalito, California 

As certified by R. Steven Brown Executive Director 

THE REGULATION OF COAL COMBUSTION PRODUCTS 

WHEREAS, The 1980 Bevill Amendment to the Resource Conservation and Recovery Act 

(RCRA) requires the U.S. Environmental Protection Agency (U.S. EPA) to "conduct a detailed 

and comprehensive study and submit a report" to U.S. Congress on the "adverse effects on 

human health and the environment, if any, of the disposal and utilization" of fly ash, bottom ash, 

slag, flue gas emission control wastes, and other byproducts from the combustion of coal and 

other fossil fuels and "to consider actions of state and other federal agencies with a view to 

avoiding duplication of effort;" and 

WHEREAS, U.S. EPA conducted the comprehensive study required by the Bevill Amendment 

and reported its findings to U.S. Congress on March 8, 1988 and on March 31, 1999, and in both 

Reports that recommended that coal combustion wastes (CCW) not be regulated as hazardous 

waste under RCRA Subtitle C; and 

WHEREAS, on August 9, 1993, U.S. EPA published a regulatory determination that regulation 

of the four large volume coal combustion wastes (fly ash, bottom ash, boiler slag, and flue gas 

emission control waste) as hazardous waste under RCRA Subtitle C is "unwarranted;" and 

WHEREAS, on May 22, 2000, U.S. EPA published a final regulatory determination that fossil 

fuel combustion wastes, including coal combustion wastes, "do not warrant regulation [as 

hazardous waste] under Subtitle C of RCRA," and that "the regulatory infrastructure is generally 

in place at the state level to ensure adequate management of these wastes;" and 

WHEREAS, U.S. EPA is under no statutory obligation to promulgate federal regulations 

applicable to CCW disposal following the regulatory determination that hazardous waste 

regulation of CCW disposal is not warranted, and throughout the entire Bevill regulatory 

process, CCW disposal has remained a state regulatory responsibility and the states have 

developed and implemented robust regulatory programs tailored to the wide-ranging 

circumstances of CCW management throughout the country; and 

WHEREAS, in 2005, U.S. EPA and the U.S. Department of Energy published a study of CCW 

disposal facilities constructed or expanded since 1994 and evolving state regulatory programs 

that found: state CCW regulatory requirements have become more stringent in recent years, the 

vast majority of new and expanded CCW disposal facilities have state-of-the-art environmental 

controls, and deviations from state regulatory requirements were being granted only on the basis 

of sound technical criteria; and 

WHEREAS, the states have demonstrated a continuing commitment to ensure proper 
156

management of CCWs and several states have announced proposals for revising and upgrading 

their state CCW regulatory programs. 

NOW, THEREFORE BE IT RESOLVED THAT THE ENVIRONMENTAL COUNCIL OF 

THE STATES: 

Agrees with U.S. EPA's repeated assessments in 1988, 1993, 1999, 2000, and 2005 that CCW 

disposal does not warrant regulation as hazardous wastes under RCRA Subtitle C; 

Agrees with U.S. EPA's finding in the 2005 study previously cited that "the regulatory 

infrastructure is generally in place at the state level to ensure adequate management of these 

wastes" and believes that states should continue to be the principal regulatory authority for 

regulating CCW as they are best suited to develop and implement CCW regulatory programs 

tailored to specific climate and geological conditions designed to protect human health and the 

environment; 

Supports safe, beneficial reuse of CCW, including for geotechnical and civil engineering 

purposes; 

Believes that the adoption and implementation of a federal CCW regulatory program would 

create an additional level of oversight that is not warranted, duplicate existing state regulatory 

programs, and require additional resources to revise or amend existing state programs to conform 

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

Believes that if U.S. EPA promulgates a federal regulatory program for state CCW waste 

management programs, the regulations must be developed under RCRA Subtitle D rather than 

RCRA Subtitle C; 

Believes that designating CCW a hazardous waste under RCRA Subtitle C could create stigma 

and liability concerns that could impact the beneficial use of CCW; and 

Therefore calls upon U.S. EPA to conclude that additional federal CCW regulations would be 

duplicative of most state programs, are unnecessary, and should not be adopted, but if adopted 

must be developed under RCRA Subtitle D rather than RCRA Subtitle C, and in addition, urges 

U.S. EPA to make a timely decision, and calls upon U.S. EPA to begin a collaborative dialogue 

with 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. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
157

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-08857-15

Organization1:Department of Electric, City of Hamilton, Ohio

Commenter1: Charles Young

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Hamilton believes that it is more appropriate for the states to continue to have primacy for CCR 

regulation under existing and effective state laws. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans.

Comment Number: EPA-HQ-RCRA-2009-0640-08975-3

Organization1:Grand River Dam Authority

Commenter1: Charles J. Barney

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.3

Comment Excerpt Text:

Lastly, the State of Oklahoma Department of Environmental Quality has expressed their view to 

EPA that coal ash is adequately regulated in Oklahoma, and should not be designated as a 

hazardous waste. Their assessment is accurate and should be weighed heavily by EPA. 
158

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-09237-4

Organization1:Ohio Coal Association

Commenter1: Michael T.W. Carey

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 11.2.5

Comment Excerpt Text:

Current State-Led Regulations are Effective. 

EPA has failed to consider the threshold question of whether or not CCR should be regulated 

under a federal statute. As noted in the proposed CCR Rule, EPA is principally seeking 

comments only on three specific issues: (I) existing harms associated with the mismanagement 

of CCR; (2) the risks associated with mismanagement of CCR; and (3) the adequacy of State 

programs. 75 Fed. Reg. 35133. It is clear from the solicitation of comments that the agency has 

already concluded further regulation is needed. This threshold issue of whether or not a federal 

regulatory scheme is necessary or warranted needs more analysis, particularly since, as 

mentioned previously, it is a federal agency's CCR management failure that is being used as the 

"emergency" driving this new regulatory approach. 

Ohio Coal contends that there is no need for EPA to engage in any federal regulation of CCR 

under RCRA. Instead, CCR should continue to be regulated by the states, and the states should 

be afforded continued primacy with the flexibility to address CCR issues as determined 

appropriate by the respective states. Existing regulations and standards, promulgated and 

enforced by states, appropriately ensure the safety and health. As EPA notes, 97% of landfills 

constructed between 1994 and 2004 were built with liners, and 98% were constructed with 

groundwater monitoring systems already in place. 75 Fed. Reg. 35128, 35151. Thus, existing 

landfills, permitted by the states, have been designed appropriately with liners and groundwater 

monitoring. While EPA has made a clear example of the 2008 TVA accident, EPA, itself, 

acknowledges the rarity of such accidents. Over decades, EPA has identified only 27 cases of 

proven damage resulting from CCR disposal and/or mismanagement, several of which are 

currently being contested. 75 Fed Reg. 35128,35133, 35142-35143. EPA has not developed a 

legitimate factual basis to justify stripping effective and appropriate state regulation of CCR in 

favor of a "one-size fits all" approach dictated by the agency.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 
159

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-09265-10

Organization1:CPS Energy

Commenter1: Michael M. Malone

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

CPS Energy and Texas has a successful history of safely reusing CCR. The EPA itself has 

identified Texas' outstanding success on its own website. Also, there are no known CCR 

containment failures or damages in the state of Texas. CPS Energy believes that a nationwide 

rule is not necessary. We believe that Texas will be unnecessarily burdened due to the failure of 

impoundments in a few states. CPS Energy believes that a state-by-state review should be 

performed prior to enacting a nationwide rule.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 
160

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-09281-4

Organization1:Exelon Power

Commenter1: Victoria K. Will

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Requiring existing impoundments that remain in use to meet modern liner and groundwater 

monitoring requirements will address some of the key risks to groundwater associated with older 

units. 

Furthermore, national standards under Subtitle D will afford equivalent protection to the public 

and the environment, regardless of where CCR impoundments or landfills are situated. In turn, a 

consistent national standard for CCR disposal units will inform the development of other 

national environmental standards, which, as a practical matter, involve CCR treatment and

disposal. For example, EPA presently is revisiting the national Steam Electric Power Generating 

Effluent Guidelines. Wastewater associated with CCR is a component of the waste streams to be 

addressed by these guidelines. Beginning with a consistent regulatory framework for water and 

waste will allow for the integration of processes across the fleet and maximize benefits and 

minimize costs as stations plan their capital expenditures for compliance. 

While some states, such as Pennsylvania, have been very proactive in regulating both the 

beneficial use and disposal of CCR, other states do not apply any regulatory program to CCR 

disposal units. See 75 Fed. Reg. 35151. Simply stated, some electric utility operators have been 

complying with more rigorous CCR design and control standards, whereas others have been 

allowed to dispose of CCRs in the absence of regulatory structure. As a result, some 

communities and members of the public invariably enjoy greater levels of protection against 

potential threats to groundwater quality. Uniform requirements applicable to all CCR disposal 

units regardless of state lines will help equitably address discrepancies in both protections and 

compliances costs under state regulatory programs that have existed for decades.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09282-3

Organization1:North Carolina Department of Environment and Natural Resources

Commenter1: Dexter R. Matthews

Commenter Type: State Government

Classification: Substantive

Comment Category:
161

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Three divisions in the North Carolina Department of Environment and Natural Resources 

(DENR) have a role in the oversight of coal combustion residuals (CCR) management (Division 

of Land Resources (DLR), Division of Waste Management (DWM) and Division of Water 

Quality (DWQ). As background for these comments and in response to EPA requests for 

information, current authority for each of the existing state programs is described below. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09284-10

Organization1:Virginia Department of Environmental Quality

Commenter1: Jeffery A. Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Virginia DEQ's Regulatory Requirements:

In Virginia, CCRs are regulated as a solid waste under our state authorities and this material is 

treated in a likewise manner as other industrial non-hazardous solid wastes. Virginia's 

regulations require an extensive permitting process for facilities that treat, store, or dispose of 

solid wastes. Beneficial uses also require review and approval prior to implementation.

Virginia's regulations require the proper management of solid wastes, such as CCRs, in order to 

prevent adverse impacts on human health or the environment. These regulations provide 

requirements for CCR management as a solid waste, including appropriate criteria for disposal 

units and provide allowances for beneficial reuse in a manner that is protective of human health 

and the environment. Virginia, like many states, has a strong and established solid waste 

management program. Virginia's statutory law under the Virginia Waste Management Act 

includes enforcement authorities, as was demonstrated to EPA when we obtained approval for 

our municipal solid waste (MSW) program (a RCRA Subtitle D program). This approach has 

been successful for regulation of MSW and is significant proof that the states have the ability to 

regulate solid waste within their jurisdiction.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
162

Comment Number: EPA-HQ-RCRA-2009-0640-09284-29

Organization1:Virginia Department of Environmental Quality

Commenter1: Jeffery A. Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.3

Comment Excerpt Text:

Virginia DEQ has a very strong and established solid waste regulatory program, as our EPA 

approved MSW permit program attests to, and has successfully regulated the management of 

coal ash as industrial waste under our laws and regulations. Coal ash is a solid waste and, as 

such, is treated in a likewise manner as other industrial solid wastes. The Virginia Solid Waste 

Management Regulations provide requirements for CCR management, including appropriate 

criteria for disposal units, and allow for its beneficial reuse in a manner that is protective of 

human health and the environment. In 2009, Virginia DEQ began working with stakeholders to 

revise Virginia's Coal Combustion Byproduct Regulations. Potential revisions to these 

regulations include additional protections that would be more protective of human health and the 

environment. The regulatory revisions being considered include:

o Inclusion of a maximum amount of fill material that could be beneficially used at a site under 

the Coal Combustion Byproduct Regulations.

o Development of a risk based approach to regulating CCR sites, based on size, with different 

requirements concerning groundwater monitoring and review of the information submitted.

o Revisions to setback requirements to be more consistent with the siting requirements of 

landfills.

o Inclusion of a prohibition of creating ponds in the CCR fill areas.

o Addition of a requirement for a hydrogeologic and geotechnical report to be prepared for the 

site which provides more documentation concerning the subsurface conditions, including the 

seasonally high water table.

o Addition of operational requirements to address dust control requirements, compaction 

requirements, the maximum size of the fill area that can be open at one time, the placement of 

soil after 60 days of not receiving CCR and cleanout requirements for sedimentation ponds.

o Additional closure requirements were discussed. Capping of the site will occur using one of 

three options specified in the regulations. There are limits on disturbing the cap and final cover 

must be maintained on the site.

o Groundwater monitoring would be required for larger sites.

o Public notification/participation would be required, through posting of a sign on the site, 

similar to a zoning sign, advising the public of the activity. 

The changes to the regulations listed above have been discussed with stakeholders; however, 

DEQ has not moved forward with developing the proposed regulation for public comment. Due 

to EPA's impending regulatory action on CCRs, DEQ put on hold developing a proposal in 

December 2009 since EPA was scheduled to release a CCR proposal in December 2009. At this 

time, DEQ has not reinitiated this rulemaking process but once initiated DEQ believes that 
163

changes concerning the issues listed above will further strengthen Virginia's Coal Combustion 

By-Product Regulations concerning the use of unencapsulated CCRs as fill material.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

as well as the supporting response to cmment documents. The commenter is referred to Unit VI 

of the preamble for a presentation and discussion of the technical standards the Agency is 

promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the 

preamble for a discussion on how EPA expect states to incorporate the CCR rules into state 

solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-09286-1

Organization1:Indiana Coal Council, Inc. (ICC)

Commenter1: J. Nathan Noland

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.3

Comment Excerpt Text:

The ICC is a member of the National Mining Association and to avoid duplicity of comments on 

several aspects of the proposal the comments of NMA are hereby incorporated into the 

comments of the ICC. Indiana's Department of Environmental Management (IDEM) has 

regulated CCR under Subtitle D for many years without any adverse effects to the environment. 

In partnership with IDEM, Indiana's Department of Environmental Management (IDEM) has 

regulated CCR under Subtitle D for many years without any adverse effects to the environment. 

In partnership with IDEM, Indiana's Department of Natural Resources (DNR) has regulated 

minefill placement of CCR at Indiana surface coal mines since the early 1980's. IDEM's 

beneficial use of CCR regulations has been successful and has avoided unnecessary costly 

disposal of CCR at landfills in Indiana.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans.

Comment Number: EPA-HQ-RCRA-2009-0640-09337-41

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive
164

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.8.4 4.2.2 4.7

Comment Excerpt Text:

Pg. 35252, Section 257.100 Closure criteria: Arizona requests that alternative final cover designs 

be approved by the Director of an approved state. Arizona’s Aquifer Protection Permit Program 

allows for the final cover design to be developed using the a Best Available Demonstrated 

Control Technology criteria and process and the design must be approved in the facility’s permit. 

Arizona requests that paragraphs (e)(1) and (e)(2) of section (e) be deleted and section (e) be 

modified as follows (modification in italics):

(e) The owner or operator of the CCR landfill or surface impoundment may select an alternative 

final cover design, provided the alternative cover design is approved by the Director of an 

approved state and certified by an independent registered professional engineer.

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

referred to Units VI of the preamble for a discussion of the closure requirements of the rule. 

The commenter is also referred to Unit IV for a discussion of the Agency’s decision to require a 

qualified professional engineer to certify demonstration provide by the owner or operator of 

the CCR unit. 

Comment Number: EPA-HQ-RCRA-2009-0640-09337-44

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.7.9.1 4.4.7.8.1

Comment Excerpt Text:

Pg. 35253, Appendices III and IV to Part 257: The parameters listed in this table are proposed 

for all CCR facilities. Under Arizona’s Aquifer Protection Permit program, the ADEQ Director 

has discretion to establish parameters for groundwater monitoring on a facility-specific basis. 

This approach provides the agency with flexibility to establish parameters in each permit. ADEQ 

suggests that a more flexible approach with facility-specific monitoring be proposed rather than 

prescriptive monitoring for all facilities.

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

referred to Unit VI for a discussion of the groundwater requirements the Agency is 

promulgating in the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09337-7

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government
165

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 11.2.5

Comment Excerpt Text:

Based on the successful record of CCR management in Arizona under existing water quality, air 

quality and dam safety statutory and regulatory authority, there is no known risk posed under 

current CCR management requirements in Arizona.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09350-18

Organization1:Texas Industries, Inc. (TXI) Operations, LP

Commenter1:David Perkins

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 8.1 4.1.1

Comment Excerpt Text:

4. Imposition of Subtitle D management practices will appropriately address land management of 

CCRs 

Management of land disposal units for fly ash could be achieved through a RCRA subtitle D 

program. Most states have already developed programs that are successful in regulating land 

disposal of fly ash. In fact, this condition is supported by EPA's determination in May of 2000 

that state regulatory programs were adequate to ensure proper management and disposal of fly 

ash. Further, EPA and the U.S. Department of Energy in 2005 determined that such state 

regulatory programs had become even more stringent. EPA can further strengthen these 

programs by providing a uniform requirement under subtitle D of RCRA for land management of 

fly ash, rather than imposing unnecessary subtitle C requirements. There is a good foundation for 

appropriate management of landfill units with current state programs that can be strengthened, 

and this is the course that EPA should follow to maximize sustainability and continue to be 

protective of human health and the environment. 

The NPRM's preamble makes clear that the catalyst for this rulemaking was the failure of the 

impoundment at Kingston, Tennessee, 75 Fed. Reg. at 35132, as well as the other damage cases 

involving CCRs that the agency has analyzed. A review of investigative findings for the 

Kingston, TN failure and also the other damage cases EPA has analyzed makes abundantly clear 

that, in every instance, the cause for the leaching or spill can be attributed to an inadequacy in the 

containment system. 

Based on the information that is provided in EPA's damage case assessment, what becomes clear 

is that the facilities involved in those cases lacked an appropriate liner and/or had been 

improperly designed and were also designed a number of years ago (opening between 1948 and 

1983). Further, EPA's damage case analysis also has recognized that the majority of the facilities 
166

had been built prior to landfill regulations and that State requirements for disposal of nonhazardous industrial waste were developed subsequently with different requirements and timing. 

Thus, the only conclusion that can be reached from EPA's own damage case analysis is that, if 

there is a need for federal regulations governing CCR disposals to be adopted, EPA's focus, and 

the outcome of this rulemaking, should be on the technical and engineering controls that are 

needed to ensure the safe disposal of CCRs generated by the utilities. 

In this regard, one significant concession that EPA has made throughout the preamble is that the 

differences in the technical and engineering control requirements that the agency has proposed 

under its subtitle C and D options are relatively small: "The Agency would implement similar 

technical controls under RCRA subtitle C or D." 75 Fed. Reg. at 35133; "Further, the technical 

unit design and groundwater monitoring requirements that will effectively protect human health 

and the environment under either option are quite similar." 75 Fed. Reg. at 35159. 

Whatever differences that might exist between EPA's subtitle C and D proposals, they are not so 

significant that they demonstrate the need for EPA to choose subtitle C over D. Indeed, it has to 

be assumed that EPA proposed its subtitle D requirements with an intention and understanding 

that, if adopted by the final rule, they would be sufficient to protect the public. 

While proponents of Option 1's adoption may argue that unless Option 1 is adopted the public 

will not be protected, neither they nor EPA has any basis for proving that. In fact, according to 

the NPRM, in January 2007, environmental and citizen groups petitioned EPA to regulate CCRs 

under subtitle D, 75 Fed. Reg. at 35143, demonstrating that the adoption of Option 1 is not

necessary to protect the public.

Under the argument that the supporters of Option 1 are now presenting, however, it is implied 

that all State environmental regulations and enforcement will always be insufficient. EPA knows 

that this is obviously not only factually incorrect, but also contrary to the regulatory structure 

designed by Congress. In fact, Option 1 supporters' claim that federal enforcement authority is 

needed for CCRs conflicts with a long history of the States enforcing hazardous waste 

requirements, not EPA, without problems. Unless EPA can prove that the States will not 

implement and enforce EPA's subtitle D requirements if adopted by this rulemaking, it would be 

unreasonable and arbitrary for EPA to conclude that subtitle D could not, and 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 IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-09425-1

Organization1:Alstom Power, Inc.

Commenter1: Robert G. Hilton
167

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.4

Comment Excerpt Text:

Alstom Power, Inc. is the largest supplier in the United States of combustion boilers, combustion 

equipment and environmental equipment for utilities and industrials that choose to burn coal. We 

have nearly 100 years of experience in the equipment that produces coal combustion byproducts 

and understand the nature of these products. It is Alstom's opinion that suitable specification 

requirements and regulation of the byproducts are appropriate to insure all States practice the 

same standards for disposal of unsold byproducts in a proper engineered manner to maintain 

safety and protect the environment. There are literally hundreds of examples of properly 

disposed byproducts in accordance with good engineering practice consistent with the 

requirements typical of non-hazardous land filling. The imposition of Sub-title D prime 

requirements in EPA's proposed rule are and have been demonstrated to be completely adequate.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a discussion of the technical 

standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred 

to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR 

rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-09510-3

Organization1:

Commenter1:Dr. Patricia Matteson

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Toxic elements in coal ash put our drinking water supplies and communities at risk, yet most 

states allow this waste to be disposed without adequate safeguards. Instead, we need healthprotective regulations that the EPA can enforce . 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09536-15

Organization1:Tennessee Valley Authority

Commenter1:John W. Myers

Commenter Type: Electric Utility Company

Classification: Substantive
168

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

State Regulatory Control 

EPA seeks comment on detailed information on current and past individual state regulatory and 

non-regulatory approaches taken to ensure the safe management of CCRs, not only under State 

waste authorities, but under other authorities as well, including the implementation of those 

approaches. 75 FR 35224 

EPA documented in the final 2000 Regulatory Determination the growing effectiveness of state 

regulatory programs for CCRs, concluding that ''with the exception of relatively few states, the 

regulatory infrastructure is generally in place at the state level to ensure adequate management of 

these wastes." 65 Fed. Reg. at 32217. Additionally, EPA acknowledged in the current CCR 

proposal that CCRs are already regulated under state solid waste management programs. 75 Fed. 

Reg. at 35142. Indeed, EPA discusses in great detail the data suggesting that state regulatory 

controls for CCRs have generally improved, though this is one of the key areas on which EPA 

seeks comment. Id. at 35151-52.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09618-2

Organization1:Waste Permits Division, Louisiana Department of Environmental Quality 

(LDEQ)

Commenter1:Don Caffery

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Since 1983, LDEQ has had success in regulating CCRs under our state solid waste regulatory 

program. All CCR management units in Louisiana are already regulated and subject to 

groundwater monitoring requirements under this program. All existing Louisiana CCR 

impoundments were built with engineered, compacted clay liners. We believe that our 

requirements are protective of human health and the environment of our state.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09631-3

Organization1:Porter Wright Morris & Arthur LLP

Commenter1:Christopher R. Schaff

Commenter Type: Law Firm

Classification: Substantive
169

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA also gives little consideration to the fact that many states, such as Ohio, already regulate the 

disposal of CCRs in a comprehensive fashion, and have done so for several years. The Ohio 

Environmental Protection Agency promulgated comprehensive rules for the disposal of CCRs in 

Ohio. See Ohio Administrative Code (OAC) Rule §§3745-30-01 et seq. These regulatory 

requirements include requirements for liners at CCR disposal facilities. See OAC §3745-30-07. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-09633-8

Organization1:Waterkeeper Alliance

Commenter1:Scott Edwards

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.4

Comment Excerpt Text:

C. States Continue To Do An Inadequate Job Of Regulating Coal Ash 

One of the major flaws of the Subtitle D option is that states would not be required to adopt the 

minimum national criteria promulgated by EPA for the safe management of coal ash. [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. 
170

In at least ten states that produce large amounts of coal ash, there is no law requiring monitoring 

of operating coal ash ponds. [Footnote 59: In 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, MIssissippi, 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 New Damage Cases of 

Contamination from Improperly Disposed Coal Combustion Waste, Environmental Integrity 

Project, Earthjustice and Sierra Club August 26, 2010 Jeff Stant, Project Director, Editor and 

Contributing Author, p. vi, available at: 

http://www.environmentalintegrity.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 monitoring, 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%20Damage%20Report1.pd

f] Nor are there any regulations that cover transportation of coal ash before its disposal. 

[Footnote 63: The State of Coal Ash Regulation in Tennessee, report by Southern Alliance for 

Clean Energy, October 26, 2010, p. 10, available at: 

http://www.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 monitoring 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/docs/FINAL_coal_ash_report.pdf] North Carolina has 

75 of these sites across the state, with 17 concentrated in a single county. [Footnote 65: Unlined 

Landfills? The Story of Coal Ash Waste in our Backyard, Sierra Club, North Carolina Chapter, 

April 7, 2010, p. 5, 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 paid 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 million to clean up. [Footnote 66: EPA Proposed Rule, p. 

40] The failure of a discharge pipe at a plant in Alabama cost $9.2 million to correct a 6.1 

million gallon release from an FGD pond. [Footnote 67: EPA Proposed Rule, p. 40] The 

residents of Gambrills, Maryland recently settled a lawsuit for $45 million with a company that 

had dumped 3.8 million tons of coal ash into gravel pits, and 84 wells were contaminated with 
171

toxic pollutants. [Footnote 68: Coal Ash: The Hidden Story, by Kristen Lombardi, Center for 

Public Integrity report, February 19, 2009, available at: 

http://www.publicintegrity.org/articles/entry/1144/?utm_source=publicintegrity&utm_medium=r

elated_heds&utm_campaign=related_bottom] Similarly, owners of a plant in Colstrip, Montana 

paid $25 million in settlement 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.publicintegrity.org/articles/entry/1144/?utm_source=publicintegrity&utm_medium=r

elated_heds&utm_campaign=related_bottom] Not surprisingly, in Montana, these types of ponds 

are exempt from state regulation. [Footnote 70: Coal Ash: The Hidden Story, by Kristen 

Lombardi, Center for 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 experience problems with coal ash that 

has been stored or disposed of improperly, where state officials simply refuse to take corrective 

action, or address the harmful environmental impacts of these hazardous waste dumps. Despite 

obfuscation efforts by state officials 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 Carolina has been well documented by NC 

Riverkeepers. The EPA recently “identified a total of 431 units managing slurried CCRs at 162 

facilities...Forty-nine (49) of these units at 30 different locations have been assigned a high 

hazard potential rating, using the criteria 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/industrial/special/fossil/ccrs-fs/ (last visited Aug. 19 2010). 

[hereinafter EPA]] The high hazard rating “indicates that a failure will probably cause loss of 

human life.” [Footnote 72: Id.] Of the 49 high hazard sites identified nationally, 12 of the units 

are located in North Carolina. [Footnote 73: Id.] 

On September 28, 2010 Cape Fear Riverkeeper Kemp Burdette investigated and documented a 

breach in the Progress Energy coal ash pond dam at its Sutton coal fired power plant just outside 

of Wilmington, NC. He found a 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-ashpit#ixzz10wuH6Nfj] As this recent example and the TVA Kingston coal ash pond failure in 

December 2008 indicate, coal ash ponds dams are prone to sudden failure and are not 

responsibly maintained. 
172

Over the last decade, Duke and Progress Energy tested groundwater surrounding the North 

Carolina coal ash ponds for contamination. Of the thirteen tested ponds all were found to have 

violations of NC groundwater standards. A report by Appalachian Voices and the Upper 

Watauga Riverkeeper summarized the contamination: 

Water sample results from ground water monitoring wells surrounding 13 coal ash ponds 

operated by Progress and Duke Energy were 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. 

[Footnote 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 extends 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”, 

because they are not required 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 violations 

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 clearly demonstrate that the Asheville plant is having a direct impact on the 

French Broad River and its aquatic life. Arsenic in water samples was over 3.5 times the water 

quality standard for fresh water aquatic life and approximately 18 times higher than the water 

quality standard for drinking water and human health. Selenium levels in the water were 

approximately 14 times the state limit for freshwater aquatic life. Fish tissue test results indicate 

that selenium is bio-accumulating in shiners at levels as high as 7.1 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 
173

newly released test result data unambiguously confirms that coal ash contaminates water and 

aquatic life at levels that cause harm. Dust samples of coal ash were also taken from homes 

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 Clean 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, Matthews, Mint 

Hill, Mount Holly and Pineville. Catawba Riverkeeper found arsenic concentrations of 26 parts 

per billion in lake surface water, near where the outfall enters Mountain Island Lake. This 

represented a concentration 2.6 times greater than North Carolina’s water 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 parts per billion. Sediments tested from Mountain Island Lake near its 

confluence with Riverbend Steam Station’s coal ash pond effluent showed elevated 

concentrations of arsenic, barium, chromium, lead, mercury, selenium and PCBs with parts per 

billion concentrations of 12,700; 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 billion 

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 permitted these discharges through its 

NPDES program for decades and is in the process of re-issuing NPDES permits without heavy 

metal concentrations limits for known coal ash constituents. 

In Tennessee, our Upper Watauga Riverkeeper created a research team of aquatic 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 half years, the research team collected more than 

1,000 water, sediment and fish samples since the spill occurred in December of 2008. Pasted 

below are some of the morphological impacts to fish that have been documented by the TVA 

coal ash spill research team: 

[Please 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)] 

[Please 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] 
174

[Please see attachment to view a picture of a compromised Largemouth Bass] 

[Please see attachment 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 Watauga 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 below 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 result 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. 

[Please see attachment to view a picture of an EPA advisory 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 exceeded more than 25 times for arsenic, cadmium, 

copper, lead, selenium and zinc. Our Satilla Riverkeeper in Georgia is fighting a project which 

brings coal ash in from Florida and dumps it in a creek bottom tributary of the Satilla River. In 

North Carolina, where the 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 Mountain 

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, Alabama 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 and 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. Regulation 

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 
175

controls, and financial assurance are put into place. [Footnote 80: EPA 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 IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-09712-1

Organization1:Basin Electric Power Cooperative (BEPC)

Commenter1: Claire M. Olson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

- Basin Electric has coal-based electric generating facilities located in both North Dakota and 

Wyoming that generate coal combustion residuals (CCRs). Both of these states have regulatory 

programs currently in place that ensure the protection of human health and the environment 

without having to subject these materials to a rigorous Subtitle C hazardous waste management 

system.

- For example, the regulatory program in North Dakota has been in place for over 20 years. The 

North Dakota rules define CCRs as a special waste. Disposal of these materials require that 

criteria such as location standards, operation requirements, design requirements, ground water 

monitoring/corrective action requirements, closure/post-closure requirements and financial 

assurance requirements must be met. The location standards specify that no solid waste 

management facility be located in any areas that could result in the impact of human health or 

the environment or in areas that are instable due to topography, geology, hydrology or soils. The 

operational requirements specify that storm water be controlled. Storm water permits/discharge 

permits are typically required. Thedisposal facility must also comply with the air quality rules. 

The operation plan must also address a waste acceptance plan, the handling procedures, standard 

inspection activities, maintenance procedures, safety procedures, record keeping, quarterly and 
176

annual report generation, and a closure plan. Appropriate design specifications are required and 

based on the waste characterization that consists of leachate analyses and mineral oxide analyses.

Ground water monitoring plans typically consist of an appropriate array of up gradient and down 

gradient observation wells that are monitored for both water levels and water quality. Financial 

assurance is required to ensure that funds are available to cover the costs of closure and postclosure care. All of the above requirements are part of the permitting process that North Dakota 

currently has in place. This permitting process also includes a pre-application process and a site 

suitability review by an advisory committee that is made up of environmental professionals in 

state government. Additionally, county planning and zoning officials are consulted during the 

permitting process. Public notice is also required. The last permitting effort completed by Basin 

Electric required that five different public notices be completed andthat these notices allow for 

public comment including opportunities for public hearings. Clearly, the program in place in 

North Dakota meets all of the requirements to ensure that human health and the environment are 

protected. 

- Other Western States have similar programs and protections. Weagree with and support the 

attached March 5, 2010 letter and comments of the Western Governors' Association to President 

Obama and Administrator Jackson.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-09728-7

Organization1:Intermountain Power Service Corporation (IPSC)

Commenter1: Jon A. Finlinson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

7. The Subtitle D and/or D' option can lend itself better to workable and deployable site specific 
177

or case specific management and disposal scenarios more protective of human health and the 

environment. 

The EPA states several times that it does not have sufficient information at the State level to 

determine if any effective CCR management practices are in place. A cursory review of the 

Docket and publicly available information indicates that several States operate programs under 

which CCR falls. These programs appear to be effective, with no damage cases or severe impacts 

shown. IPSC has already spoken to the State of Utah programs, and they have proven effective in 

managing CCR and any issues from CCR, albeit in a voluntary fashion. Utah is poised to make 

statutory changes where required to allow implementation of an Option D program, with the 

support of industry. 

Information on State level programs is lacking in the docket, and the EPA is rightfully asking for 

details. We suggest that the EPA review and add this information prior to finalizing any option. 

It would be premature to discount a Subtitle D option without a full review of potential State 

oversight capabilities.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-09768-3

Organization1:The Learning Community

Commenter1: Louise Gorenflo

Commenter Type: Community/Religious/Social Organization

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:

Subtitle C is the recommended option for adequately regulating coal ash waste. In fact, Subtitle 

C is the only viable option because it is the only option that offers comprehensive, federally 
178

enforceable, cradle-to-grave management of coal ash. States like Tennessee have shown that they 

are not proactively interested in proper regulation of toxic coal ash.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-09770-1

Organization1:Upper Cumberland Group of the Sierra Club, et al.

Commenter1: Mary M. Mastin and Brian Paddock

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:

We strongly urge that EPA adopt regulation of coal ash as a hazardous waste under Resource 

Conservation & Recovery Act (RCRA) Subtitle C. We believe that our state agencies and state 

law are inadequate to protect our citizens, environment, water quality and aquatic life and 

wildlife from the hazards of coal ash. We make this recommendation based on close study of 

Tennessee Department of Environment and Conservation (TDEC), Tennessee Valley Authority 

(TVA) and the Tennessee State General Assembly’s (Legislature) responses since the Kingston 

ash release disaster.

The Sierra Club and TEC members who are signing these comments have attended most of the 

briefings by TDEC, TVA and EPA, conducted in Roane County and in the State Legislature, on 

the Kingston ash release disaster and both the causes and responses.

These comments are offered in light of the TVA Board’s announced plants to dispose of 10 

million tons of coal ash per year into landfills. [Footnote 1: We were dismayed when EPA 

allowed TVA to permanently store some coal ash in a and unlined riparian impoundment 

adjacent to the Kingston plant.] Moving ten million cubic yards of coal ash across public roads 

or on rail lines that run through our farms, forests and cities is a significant risk. Neither our State 

landfill regulatory standards or the TDEC Solid Waste Division is up to this task. [Footnote 2: 

The indifference to the risk of coal ash was shown by the suggest that TVA’s Integrated 

Resource Plan and link Programmatic Environmental Impact Statement should: “Develop ash 

and scrubber sludge disposal sites that can be redeveloped as residential or industrial sites.” 

Environmental Impact Statement Scoping Report, November, 2009. Appendix B, found at: 

http://www.tva.gov/environment/reports/irp/pdf/irp_scoping_document.pdf] TDEC has 

repeatedly refused to consider state regulation of the transport of coal ash (or any other waste 

classified as non-hazardous. TDEC has also allowed coal ash (and radioactive waste) to be added 
179

to municipal landfills as “special waste” without any public notice or comment. See: 

http://www.state.tn.us/environment/permits/specwste.shtml)

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans.

Comment Number: EPA-HQ-RCRA-2009-0640-09770-2

Organization1:Upper Cumberland Group of the Sierra Club, et al.

Commenter1: Mary M. Mastin and Brian Paddock

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 8.6.1

Comment Excerpt Text:

After we brought Dr. Dennis Lemly, a leading expert on the effects of selenium in aquatic life, to 

testify at a Tennessee House Conservation Committee meeting on a bill [Footnote 3: At the 

behest of coal mining industry the chairmen of the state House and Senate committees on the 

environment had introduced bills to define the acute and chronic levels of selenium in the states 

Water Quality Standards at levels far higher than the levels currently specified in the EPA 

national guidance. Never before has the legislature considered itself to have the scientific 

expertise to define a Water Quality Standard and intrude on the science based process used by 

EPA and TDEC to arrive at the Water Quality Standards embodied in state regulations and 

subject to triennial review.], we sat in on an interview by top TDEC officials with Dr. Lemly. 

We have had numerous conversations with TDEC officials regarding the effects of selenium and 

other metals released to our waters from both wet and dry coal ash impoundments.

We are concerned that TDEC officials do not take seriously the long-term effects of selenium 

discharges on fish and aquatic life (including fish reproductive capabilities) downstream of the 

Kingston coal ash disaster. We know that selenium’s threat is from bioaccumulation in fish and 

in the foodchain for wildlife.

TDEC has continually downplayed the significance of impacts to aquatic life from selenium 

discharges related to coal and coal ash in water. Until recently, TDEC did not require selenium 

limits in NPDES coal mining permits. TDEC has recently proposed a new water quality standard 

for selenium which we have contested as inadequate. From our observations, TDEC has 

downplayed the results of fish studies taken downstream of the Kingston disaster by scientists 

employed by organizations such as Appalachian State University, Watauga Riverkeepers and the 

Tennessee Aquarium.

Fish tissue studies at the Kingston site from June 2009, seven months after the “spill” were 
180

recently complied by Dr. Shea Tuberty of Appalachian State University. These show levels of 

6.82 mg/kg and and 7.72 mg/kg in ovaries of redear sunfish and large-mouthed bass, which we 

understand is in the toxic range for reproductive failure A copy of Dr. Tuberty’s chart and a 

summary of his recent presentation of the results follow as endnote one. [Endnote 1: See Table 1 

and subsequent discussion]

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

referred to Units XI that discusses the damage cases resulting from improper CCR management. 

Comment Number: EPA-HQ-RCRA-2009-0640-09770-3

Organization1:Upper Cumberland Group of the Sierra Club, et al.

Commenter1: Mary M. Mastin and Brian Paddock

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

We have reviewed and commented on the NPDES permits for TVA’s coal fired power plants at 

Johnsonville and Kingston including the continuing unpermitted discharges to the Tennessee 

River from the leaking ash ponds at the Johnsonville Plant.

We observed the entire state legislative session in 2010 when TDEC failed to obtain passage of a 

resolution authorizing an inspection and report on impoundments which have long been 

exempted under the Tennessee the Safe Dams Act. This study would have provided the basis for 

eliminating the exemption for wastewater impoundments, like the TVA ash ponds.

In 2009 and 2010 we worked with a citizens group in Cumberland County who opposed a 

proposed landfill that would have accepted coal ash transported in ordinary dump trucks from 

TVA’s Kingston plant. The dump site was to be an partially reclaimed coal strip mine at the top 

of Smith Mountain in Cumberland County, Tennessee. The application for a TN Solid Waste Act 

Subtitle D “permit by rule” for the site proposed that hundreds of ash filled trucks a day would 

traverse a narrow two lane mountain road that had already proved to be hazardous by the 

numerous accidents which occurred while coal trucks used the road.

One step in the permitting process was a decision by the federal Office of Surface Mining (OSM) 

to allow a revision of the reclamation plan to all “industrial use” for a coal ash monofill. The 

Knoxville OSM allowed this revision despite strong objections by the National Park Service that 

discharges from mining derived sediment ponds and from waters that traversed the prosed land 

fill would pollute tributaries to Obed River National Wild and Scenic river. Were coal classified 

as a hazardous waste under Subtitle C, both the secure and contained transportation of the ash 

and the deleterious effects of discharges of metal polluted waters would have been treated more 

seriously and the unsuitability of the disposal site recognized much sooner, without the great 

expenditure of money and effort that local residents have had to make to protect their mountain 

side environment, the Obed River, its tributaries, and an incredible rich biodiverse area.
181

Another example of the ineptitude of TN Solid Waste regulators is the issue of the recently 

issued permit for the Roberta landfill outside Oneida, TN. This permit is found at: 

http://www.state.tn.us/environment/swm/ppo/roberta_snl760281_letter_resp.pdf

This is a State landfill permit ostensibly for municipal solid waste, yet it is only for a 12 month 

period. The related Aquatic Resource Alteration Permit (ARAP) application stated that coal ash 

might be disposed of in the landfill but the Division of Solid Waste ignored this as ARAPs are 

under the Water Pollution Control Division. [Footnote 4: The ARAP is to allow a stream that 

flows into the hollow proposed for the landfill to be captured in a french drain and conveyed 

beneath the liner of the landfill and then released to a tributary to the Big South Fork (BSF) 

which flows into the BSF National Recreation Area. The National Park Service has strongly 

objected to this permit and requested that additional efforts to identify threatened or endangered 

species by performed.] The Division of Water Pollution Control in turn ignored the likely 

disposal of coal ash in approving the National Pollution Discharge Elimination (NPDES) permit 

which allows the leachate collected to be “treated” by the Oneida City wastewater treatment 

facility. Of course, that facility has no capacity to treat any heavy metals that may appear in the 

leachate once coals is contributing to the leachate composition. [Footnote 5: Because municipal 

sewage treatment plants cannot handle many industrial wastes, “Industrial wastes that are 

discharged to municipal sewer systems are subject to regulations. The Division of Water 

Pollution Control has given approval to 107 municipal pretreatment programs; 15 additional 

municipal pretreatment programs are in various phases of development. Discharge permits have 

been issued to approximately 750 industries.” TDEC website at: 

http://www.tn.gov/environment/wpc/] (Note also the information on the leakage from the 

composite liners as discussed in the letter from licensed Geologist Mark Quarles, attached.)

What will likely happen is that TVA coal ash will be disposed of in the “Roberta” landfill 

expansion under the invisible “special waste” procedure cited above after the initial permit is 

renewed for a period of years and TVA has announced its long term plans for disposition of coal 

ash from the Kingston Plant.

As attorneys we have studied the state’s Solid Waste Act and solid waste regulations and found 

them lacking. In response, we drafted a bill that would have modernized state regulation of coal 

ash disposal in landfills, though it did not classify coal ash as hazardous waste. After extensive 

negotiation of revisions to the draft legislation, TDEC did not oppose the legislation or assert that 

it would have any substantial cost of implementation (fiscal note).

Despite a lack of any recorded opposition, the bill died. It took only two phone calls from the 

State Chamber of Commerce lobbyist, one to the subcommittee chair and one to the sponsor to 

kill the bill. The bill failed in the first legislative subcommittee for lack of a motion. We learned 

later that our House sponsor had accepted a $1,000 campaign contribution from the permit 

applicant for the Smith Mountain coal ash landfill. He remained silent as a member of the 

subcommittee when a motion and second for the bill was called for by the chair. He failed to 

even move for approval of his own bill.

The state’s regulations of solid waste are inadequate. We ask that the attached letter from 

geologist Mark Quarles to the Tennessee Solid Waste Advisory Committee be made a part of the 
182

record. Mr. Quarles letter spells out some of the inadequacies of Tennessee solid waste 

regulation as regards coal ash disposal, including the facts that in Tennessee there are: 

widespread landfill effects on groundwater [Footnote 6: According to TDEC’s own studies, at 

least 31% of all landfills are leaking leachate into our groundwater. Tennessee is alos the only 

state to allow low level nuclear waste into municipal landfills under the “Bulk Survey for 

Release” program. 

http://www.informthepublic.org/files/31_TN_Landfills_Leak_Anderson_Co_Landfill_Accepts_

Radioactive_Waste.htm. (2007)] [Footnote 7: See: Natural Resources Defense Council, Inc., 

Beatrice Holt, and Sheila Holt-Orsted v. County of Dickson, Tennessee, City of Dickson, 

Tennessee, Alp Lighting and Ceiling Products, Inc., Nemak USA, Inc., and Interstate Packaging 

Company. U.S. District Court Middle District of TN, No. 3:08-cv-00229.], landfills commonly 

located next to sensitive waterways, public water testing is not reflective of risks from landfills, 

landfills are sometimes un-monitored for contamination, landfills are commonly permitted in 

extreme karst conditions and problem wastes, like coal ash, require better design standards and 

disposal alternatives.

Current TDEC rules require liners for industrial waste landfills to meet the same technical 

standards as municipal solid waste landfills. Sometimes, the waste characteristics should require 

that TDEC implement more stringent standards. Instead TDEC still has “permit by rule” 

regulations allowing permits to spread coal ash on farm fields, and put it in unlined, uncontained 

and uncapped “fills” used to adjust roadbed grades and other similar situations No agency of the 

state regulates the transport of coal ash. Impacts from the transport of coal ash is one of the 

biggest concerns of citizens who live near one of the landfills that currently accepts coal ash. At 

first, we understood that TVA would transport ash in sealed rail cars or in hopper type container 

trucks or similar trucks that would not release ash to the environment.

In the final Environmental Assessment on the Kingston Dry Fly Ash Conversion the Kingston, 

TVA says that its new dry ash fly ash will be “collected in the storage silos would be unloaded 

into pneumatic trucks, open trucks, or rail cars for transportation to disposal sites or for 

marketing purposes.” [Footnote 8: June 2010 Kingston Dry Fly Ash Conversion the Kingston, 

TVA, 2.1.2. Alternative B – Action Alternative – Dry Fly Ash Conversion] (Emphasis added)

When a public meeting was later held, TVA officials said they intended to transport by any 

means the TN Departments of Transportation would allow. TVA expected to use conventional 

dump trucks covered only with a roll out tarp. This is the method of transport now used to move 

ash from TVA’s Johnsonville Plant to the TransAsh Bivins landfill. It discharges either a flow of 

ash particles as air pollution or leaves dripping ash sludge along the roadways, depending on the 

moisture content of the ash when it is loaded.

Although TDEC has taken some protective actions since the Kingston disaster, these changes 

have not been codified in law or regulation. For instance in January 2009, the TDEC 

Commissioner ordered a complete structural analysis of all Tennessee coal ash impoundments. 

This is commendable and reflects on TDEC's response to the Kingston disaster, but it is not an 

effort that was required by Tennessee laws or regulations.

TDEC asserts that all National Pollutant Discharge Elimination System (NPDES) permits for wet 
183

coal ash impoundments since the spill have structural integrity requirements. We believe these 

inspection requirements are little changed from those that failed to protect us from the disastrous 

ash discharge at Kingston. According to the August 2010 Inspector General Report, stability of 

Dike C at Kingston remains a concern. [Footnote 9: Final Report – Inspection 2009-12910-01–

Peer Review of Stability Analysis of Dike C at Kingston Fossil Plant]

Although TDEC’s most recent NPDES permits for TVA coal plants now contain “Dike 

Inspection Requirements”, these are not structural integrity standards that set specific guidelines 

for assuring that ash ponds are safe. Rather, they merely require operators to inspect for erosion, 

cracks, seeps and similar structural problems. If problems are observed, operators are required to 

address these problems, but no standards or guidelines are set for how to design or remediate 

these problems. The difference here is significant; it is the difference between imposing real 

safety standards and merely telling operators to keep an eye on their ponds.

Although EPA has the authority to review all NPDES permits prior to issuance, with respect to 

coal ash impoundments, the Clean Water Act (CWA) addresses only pollution discharges, not 

structural stability, groundwater monitoring, closure, post-closure care, financial assurances or 

other such safeguards. Thus, compliance with the CWA does not mean that ash impoundments 

are sufficiently regulated, only that their wastewater discharges are addressed.

The Tennessee General Assembly passed legislation in 2009 requiring coal ash landfills to have 

a liner (of unspecified functionality, type, design or longevity) and a final cap (with no 

specifications). This is the only state statutory change since the Kingston disaster but it clearly is 

not a response to Kingston because the new requirement for liners and a final cap do not apply to 

wet impoundments, only to landfills. In an exception that eats the rule, the same amendment to 

the Solid Waste Act also exempts coal ash used as fill, agricultural uses, engineered uses, and, as 

previously mentioned wet impoundment. Therefore, it does not properly address the specific 

dangers of coal ash. TDEC did nothing to assist the sponsor to draft and enact a bill that would 

actually improve the quality of coal ash landfill containment standards.

Since the Kingston disaster, so far was we know, TDEC has not allowed any coal ash landfill to 

be constructed under the “permit by rule” provisions of the regulations or waived appropriate 

regulations, and required all permit applications to meet Class II design criteria. We believe this 

is due to the Council’s and the Chapter’s regular scrutiny of landfill permit applications and 

strong public interest in the containment of coal ash. However, Tennessee regulations permit 

waivers of solid waste regulations and our concern is that a future administration is not bound to 

continue this practice. As with the structural analysis review, this is commendable, but without 

stronger regulations, the practices of the current administration will not necessarily continue.

It is laudable that TVA has announced that it plans to move to dry coal ash storage at all of its 

seven coal-fired power plants in Tennessee. This move, while alleviating concerns of future 

disasters due to dike instability, etc in wet ash ponds, only highlights the problems with the 

inadequacy of Tennessee solid waste regulations and total lack of regulation over the transport of 

coal ash in the process.

We need federal regulation of coal ash as hazardous waste to provide protection to Tennessee 
184

citizens, waterways and waterlife. We believe that the situation nationwide demands the same.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-09808-3

Organization1:Wyoming Outdoor Council

Commenter1: Bruce Pendery

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.4

Comment Excerpt Text:

The lesser effectiveness of the subtitle D approach, which 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 surface 

impoundments. Thirty-six percent of the states do not have liner requirements for CCR landfills 

and 67 percent do not have CCR liner requirements for surface impoundments. Nineteen percent 

of the states do not have minimum groundwater monitoring requirements for landfills and 61 

percent do not have groundwater monitoring requirements for surface impoundments. Thus state 

regulation of CCRs appears significantly deficient, and assuming they would have improved 

performance under a subtitle DCCR program largely entrusted to their discretion seems 

misplaced. There is a need for consistent federal standards and a level playing field nationwide, 

and the subtitle C approach would achieve that.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-09820-3

Organization1:Tampa Electric Company

Commenter1: Gordon L. Gillette

Commenter Type: Electric Utility Company

Classification: Substantive
185

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Tampa Electric's efforts have also included many improvements to its CCR storage and handling 

facilities, including the capping and closure of inactive former CCR disposal units, the lining of 

active impoundments and the redesign of systems to allow for direct load out and shipment (with 

no onsite storage) of byproducts to our CCR customers. These improvements have proven 

successful in ensuring that the temporary onsite storage of CCR's which are destined for 

beneficial reuse, as well as the onsite disposal of the small percentage of unmarketable CCR's 

that we produce, are carried out in a manner that is environmentally acceptable. As required by 

the Florida Department of Environmental Protection's (FDEP) existing rules, we have retrofitted 

our storage and disposal areas with liner systems that comply with the permeability and leachate 

management standards contained in the existing federal Subtitle D regulations. These standards 

are administered by the FDEP under its EPA authorized Subtitle D Program, which governs the 

disposal of both Municipal Solid Waste and industrial byproducts such as CCR's. Also, as 

required by the FDEP's groundwater protection rules, we have installed extensive groundwater 

monitoring networks at our facilities to demonstrate the effectiveness of the above improvements 

in protecting groundwater resources. Our company's experience is provided both as an example 

of the effectiveness of Florida's regulation of CCR's under the federal program and as a model 

for other states to follow. Tampa Electric believes that by mandating Subtitle D regulation of 

CCR's and then requiring states to either implement the federal standards or demonstrate the 

equivalency of their own standards, as is the case with Florida's program, the EPA can 

accomplish its goal of assuring the safety and environmental performance of CCR disposal units 

nationwide. This approach could be fully enabled by federal legislation to provide EPA with the 

enforcement authority to require state conformance with the Subtitle D requirements for CCR's. 

However, the final Subtitle D regulatory proposal should allow for the continued operation of 

existing impoundments that can demonstrate equivalence to the Subtitle D performance 

standards for such facilities, taking into account state and site-specific considerations.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 
186

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-09827-3

Organization1:Kansas City Board of Public Utilities (BPU)

Commenter1: John Pettey

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The State of Kansas has two State Departments with programs that address the concerns 

identified in the Proposed Rule. The Kansas Department of Health and Environment (KDHE) is 

one of the most advanced states in the regulation of solid waste and the regulation of ash landfills 

and wastewater treatment impoundments. KDHE and utilities in the state focus on recycle and 

reuse of materials such as coal combustion residuals and the beneficial use of coal combustion 

residuals in Kansas is carefully controlled. The Kansas Department of Agriculture Division of 

Water Resources implements regulatory requirements for dam safety permitting and regulatory 

inspections. The partnership that exists between the Kansas utilities and the Kansas Departments 

to ensure effective control of coal combustion residuals should not be disturbed by an overlay of 

federal requirements or by the addition of a very costly program that does not have 

corresponding benefits.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-09880-21

Organization1:FirstEnergy Corporation

Commenter1: Michael L. Horvath

Commenter Type: Electric Utility Company
187

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

XI. Comments of the Various States

22. FirstEnergy is aware of a number of letters, comments and hearing testimonies by 

representatives from various state governments, state environmental protection agencies, state 

chambers of commerce, etc. We request that tabulation, by state, be compiled by EPA and made 

part of the record. This compilation would take advantage of their knowledge regarding the 

management and regulation of these materials and should indicate:

• whether each state government, state EPA, or other state agency has provided input of any kind 

to EPA in support of RCRA C or RCRA D regulation of CCR wastes,

• whether each state currently regulates CCRs as hazardous or solid wastes,

• whether each state has permitting programs in place or intends to promulgate such regulations 

requiring permits for the disposal of CCRs,

• whether each state has any coal-fired power plants operating in that state (to eliminate 

irrelevant positions by non-coal burning states used to possibly advantage one state over 

another).

Many governmental representatives from coal burning states have commented on this issue. 

Those positions are valid and EPA should rightfully consider, respond to and present their views 

on the record

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.
188

Comment Number: EPA-HQ-RCRA-2009-0640-09884-8

Organization1:Luminant

Commenter1: Shawn Glacken

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

II. Luminant Supports the Texas Program for Regulation and Enforcement 

Texas currently has a sound program to regulate the management of CCR without a Federal 

program under Subtitle C or D. In Texas, if CCR is disposed of, it is regulated as industrial 

waste. If a generator stores, treats, or disposes its own non-hazardous industrial waste, the 

generator must register with the TCEQ. A person that intends to store, process, or dispose 

industrial solid waste, including CCR, must provide notice to the TCEQ at least 90 days prior to 

the management of waste in a particular waste management unit.

Elements required as part of the notification to the TCEQ, include waste composition and 

classification data, the regional geologic setting, site-specific hydro-geology, the results of a 

geotechnical investigation, engineering design and specifications, a groundwater monitoring plan 

in which TCEQ has recently required including use of RCRA-based statistical methods to 

evaluate any potential exceedances, a closure plan including the regulatory-based methods that 

will be used to close the unit, and a post-closure inspection and maintenance plan. It should be 

noted that facilities are also subject to general prohibitions against polluting water, creating a 

nuisance, and endangering public health and welfare.

These notification packages are reviewed by the TCEQ Waste Permits Division. These reviews 

are thorough, detailed and comprehensive. Examples of some of TCEQ's comments include 

requests for justifications of monitoring well locations, statistical groundwater data evaluation 

procedures, and details on waste handling methods. The industrial solid waste regulations and 

compliance with the general prohibitions in Texas are fostered and supported by a series of 

technical guidance documents referenced in state regulations. These documents, which are 

periodically updated by the TCEQ, cover topics ranging from site selection, landfill design and 

construction to groundwater monitoring and thus address the significant issues that are stated by 

EPA to be addressed by its proposed CCR rules. Potential releases from CCR disposal units are 

also addressed in state regulation. This program has a nearly IS-year track record of success and 

is supported by a series of more than two dozen detailed guidance documents. TCEQ is currently 

developing the Texas Environmental Data System (TEDS) which will import spatial, chemistry, 

and geologic data and information into a database that will interface with software such as 

ArcGIS for mapping, RockWorks for visualization, Surfer for modeling and other applications to 

enhance evaluation of groundwater monitoring data and compliance with state regulations.

The regulatory system in Texas is more pragmatic and less burdensome on regulated entities and 

on the regulatory resources allowing for a comprehensive program that is protective of human 

health and the environment in a manner that is efficient in its use of resources. Upgrades to 

existing systems in Texas that are based on good science and engineering and consider site-
189

specific conditions can also currently be made at a lower cost and with a much shorter 

implementation time. For example, over the last few years Luminant has improved much of its 

groundwater monitoring program to utilize low-flow technology. This technology is preferred by 

the TCEQ and results in less water purged for sampling and a higher degree of confidence in the 

groundwater data.

Waste classification samples collected over the last 20 years from Luminant facilities that 

generate CCR, confirm that all CCR that Luminant generates are non-hazardous. In addition to 

the same regulations that EPA currently utilizes to determine if a waste is characteristically 

hazardous, Texas has a detailed non-hazardous waste classification system outlined in state 

regulation and supported by guidance documents.

Luminant has had a groundwater monitoring program for its CCR landfills and impoundments 

since the 1980's. Groundwater parameters analyzed are based on detailed analysis of waste 

classification samples and at a minimum include parameters commonly associated with CCR. 

Additional investigation and corrective action is implemented if necessary.

Texas existing regulations provide 8 criteria that are used to determine legitimate and safe 

beneficial uses of materials while applied to land. One of the criteria requires attainment of 

analytical thresholds to ensure safety of human health and the environment. Some of the 

thresholds were originally developed under the municipal sludge rules and others from detailed 

waste classification and groundwater protection criteria. Storage limitations prior to use are also 

specifically addressed in the Texas rules. The use of bottom ash for fill and road-base in Texas 

are just two of the examples that could be eliminated under EPA's proposed hazardous waste rule 

for CCR. The resulting economic impacts would be significant and would result in higher 

electricity costs without benefit to human health or the environment.

Texas has appropriate regulatory tools to manage CCR safely. At a time when competing 

priorities stretch agency resources, it is unjustified to add additional financial burdens that do not 

demonstrably improve or protect the citizens of Texas or the environment

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 
190

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-09889-6

Organization1:Texas Association of Business

Commenter1: Stephen Minick

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 11.2.5 7.1.2.4

Comment Excerpt Text:

While a rulemaking under the Subtitle D option, and particularly the “D Prime” alternative, 

would be far preferable to TAB, we are of the opinion that Subtitle D regulation is not warranted 

at this time. States, such as Texas, which have developed and implemented effective and robust 

programs for regulation of both CCR management and disposal and dam safety should be 

allowed to continue to operate those programs in the absence of a clear demonstration that those 

programs are not adequately protecting public health and welfare to a degree consistent with any 

results anticipated under Subtitle D. CCR in Texas is regulated as an industrial solid waste and is 

subject to requirements for onsite disposal that include waste characterization and composition, 

prior notice of waste placement, site-specific geology, hydrogeology, and engineering, 

groundwater monitoring, and closure and post-closure planning.

Texas has also significantly increased its focus on dam safety in recent years and has established 

a comprehensive program based on national models that will increase the rate of inspection of 

dams, use remote sensing to verify the existence of previously unregistered or uncategorized 

dams and significantly improve public awareness of dam safety and the obligations and potential 

liabilities of dam owners and operators. The prospect that other states have not exercised the 

discretion to regulate CCR or dam safety in a manner that EPA may consider adequate is not 

justification at this time for uniform federal regulation, even under Subtitle D. Such regulation 

may not add any additional benefit to Texas, may well increase costs to both the state and 

businesses and could significantly reduce the real benefits of the Texas program to address 

regional and site-specific circumstances timely, flexible and creatively while giving up nothing 

in the way of effective and safe waste management.

The NPRM suggests that EPA is not familiar with the programs in place in the various states that 

manage significant volumes of CCR and even solicits comment on those programs to better 

inform this process. TAB suggests that before any proposal to regulate CCR under Subtitle C or 

D is advanced, that information should be reviewed carefully to determine where EPA’s efforts 

may be more appropriately focused on programs that need improvement. Further communication 

with those states and possibly guidance from EPA as to what efforts in other states are proving 

effective would be a preferable next step before any further action to propose specific RCRA 

regulations.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 
191

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-09951-25

Organization1:Full Circle Solutions, Incorporated

Commenter1: Robert J. Waldrop

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

State Programs

EPA has requested detailed information on current and past individual state regulatory and nonregulatory approaches taken to ensure the safe management of CCRs, not only under State waste 

authorities, but under other authorities as well, including the implementation of those 

approaches.

In Virginia, 9 VAC 20-80, allows for uses of CCPs that are either exempt or excluded from solid 

waste regulation. North Carolina allows for similar uses without solid waste permitting . These 

are found at 15A NCAC 13B.1708. These uses include: CCPs used for agricultural uses, road 

traction material, in the manufacture of another product, structural fill under a structure, for 

extraction or recovery of materials, and when processed with a cementitious binder to produce a 

stabilized structural fill product.

Both states also allow for the use of CCPs in structural fills or mine reclamation . Virginia's 

regulations are found at 9 VAC 20-85. North Carolina's are found under the solid waste 

regulations at 15A NCAC 13B .1700 .

Structural fill projects must comply with siting, design, construction, operating, and closure 

criteria. Siting criteria include separation from base floods, seasonal high groundwater table, 

streams, wells, bedrock outcrops, sinkholes, property boundaries, wetlands, inactive dumps and 

lagoons. Design and construction requirements include run-on and runoff control, sloping, 

stormwater controls and compaction testing.

Operational requirements include restrictions on tracking of mud or CCPs, prohibition on other 

wastes, dust control, engineered spreading and compaction, and erosion control measures. 

Closure criteria include soil cover, vegetation, prevention of disturbance, time limits, and deed 

recordation.

Response: The Agency acknowledges and appreciates the comment. 
192

Comment Number: EPA-HQ-RCRA-2009-0640-10160-2

Organization1:

Commenter1:Donald A. Moen, P.E., Ph.D.

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1

Comment Excerpt Text:

Of course we want to prevent a repeat of the Kingston Dam disaster but that does not require a 

hazardous waste determination. That only requires that physical containment facilities be 

properly designed. Here in North Dakota, I believe we have done an excellent job of that. 

OurNorth Dakota experience as well as experience in other states is available as input data for 

regulation under RCRASubtitle D. I think this makesalot more sense than regulation as "special 

hazardous waste.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-10166-9

Organization1:Consumers Energy Company

Commenter1: Gary A. Dawson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The State of Michigan, as noted above, enforces a regulatory program for CCRs under Part 115 

of Michigan's Natural Resource and Environmental Protection Act (Public Act 451 of 1994) that 

is well-grounded in Subtitle D, viz .

- Provides for the issuance of construction permits for CCR facilities that meet the minimum 

requirements of 40 CFR Part 257 (RCRA Subtitle D)

- Requires financial assurance throughout the operating life of the surface impoundment or 

landfill and through the post-closure period . In addition to bond instruments, a perpetual care 

fund is required and based on the tons or cubic yards of CCRs disposed of in the facility .

- Provides for the issuance of 5-year renewable operating licenses that stipulate requirements for 
193

operation, groundwater monitoring, closure, post-closure, and corrective action (if necessary)

- Provides for a groundwater monitoring program consistent with 40 CFR Part 258 for water 

quality monitoring .

- Provides for closure with a final cover that meets construction criteria commensurate with 

RCRA Subtitle D unless an equivalent alternative cover is approved. The placement of final 

cover and closure of all CCR facilities is certified by a registered professional engineer and 

documented in a Certified Quality Assurance (CQA) report consistent with 40 CFR Part 257.

- Consistent with 40 CFR Part 258, all CCR facilities closed in Michigan must maintain final 

cover at design depth, maintain vegetative cover and minimize erosion for 30 years after closure. 

Groundwater monitoring is required semiannually; financial assurance must also be maintained. 

These criteria are consistent with provisions of 40 CFR Part 258.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-10167-3

Organization1:Northern Plains Resource Council

Commenter1: Ed Gulick

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

J. E. Corette coal-fired power plant

Although Colstrip is the most glaring example of contamination, the problems with CCR's in 

Montana are not limited to Colstrip. In the town of Billings, the largest city in Montana, PPLM 

owns a smaller power plant, the J.E. Corette plant. This plant was built in 1968 and has been 

generating power and waste ever since. Thankfully, the Corette plant is very smart about 

beneficially using its coal ash and much of the coal ash is recycled. Indeed, Northern Plains' own 

office building has fly ash in their floors from this particular plant, and we believe that some 

beneficial uses of CCR's are warranted.

However, the Corette plant also has an expired discharge permit (MT0000396) from the 

Montana DEQ through the Montana Pollution Discharge Elimination System (MPDES) that 

authorizes "discharge from the bottom ash handling system ." This water is used to slurry bottom 

ash and is then discharged in the Yellowstone River with very few water quality standards. 
194

Indeed, there are no tests for heavy metals or any other chemicals that could be present in CCR's, 

and the discharge permit authorizes a 1 .5 mile mixing zone that ends just upstream of the town 

of Lockwood's water intake . This discharge permit was scheduled to be renewed in 2005 but has 

not yet been addressed by the DEQ. The rest of the CCR's from Corette are mainly recycled into 

concrete and used as mine fill. However, since there is little or no regulation in the state of 

Montana, the actual end uses of coal ash from this plant are untrackable.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-10167-4

Organization1:Northern Plains Resource Council

Commenter1: Ed Gulick

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.1 3.1.1 4.2.4

Comment Excerpt Text:

Need for regulation

As shown by the problems outline above, federal oversight of CCR's is long overdue. The 

Montana DEQ has not had the capacity or wherewithal to deal with CCR's. Citizen's suits are 

only somewhat effective in addressing monetary costs to individual landowners. But these suits 

have not addressed the root of the problem, which is the fact that the ponds are leaking in the 

first place. The industry is not interested in fixing the problem and is more focused on containing 

it. This amounts to a bandaid on a broken arm. More proactive, enforceable action is needed.

Subtitle D regulations would result in no change for the State of Montana, leaving our members 

in Colstrip to foot the bill. This approach has obviously not worked in the 30 years since Colstrip 

has been in operation, and it will not work for the future years. On the other hand, Subtitle C 
195

regulations would provide citizens with a handle to address and perhaps stop coal ash problems 

early on through federal enforcement and involvement. The phasing out of wet storage would be 

a huge step toward solving some of the problems in Colstrip. Additionally, the industry's claim 

about a "stigma" surrounding beneficial uses is unmerited. The rules are written specifically to 

exempt beneficial uses and, as indicated by the EPA's own studies, would 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 IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-10179-3

Organization1:Greater Louisville Incorporated, Kentucky

Commenter1: Timothy J. Hagerty

Commenter Type: Local Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1 4.1.3

Comment Excerpt Text:

Of the options outlined in the proposed rule making, GLI could support the regulation of CCRs 

under Subtitle D. It is our opinion that Subtitle D allows for a level of regulation that is equally 

protective of human health and the environment while allowing for regulatory oversight at an 

appropriate level. The Commonwealth of Kentucky currently has regulations and administrative 

procedures in place under 401 Kentucky Administrative Regulations (KAR) Chapter 45 for the 

disposal of CCRs that conform to the federal regulations for Subtitle D. This existing structure 

will allow Kentucky to continue the regulation of CCRs in the most efficient and effective 

manner. GLI also encourages EPA to implement the "D Prime" alternative as an effective means 

of appropriately regulating surface impoundments for CCRs.
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Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-10262-1

Organization1:Bert & Wetta Abilene, Inc.

Commenter1: Stan Foltz

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1 9.3.7 9.2.1

Comment Excerpt Text:

Your agency has proposed two options for regulating the disposal, storage and beneficial use of 

CCR. The first option is a bifurcated approach and will be especially burdensome. Kansas law 

does not allow the land disposal of hazardous waste in the state. If the first option prevails, 

Kansas utilities could be required to haul all CCR out of Kansas to an unknown hazardous waste 

site in another state, provided that facility would accept it. The costs of such a transfer would 

certainly increase the residential electricity rates my employees pay, but also the rates I pay for 

my business. If Kansas law were changed to allow onsite disposal of CCR the hazardous waste 

permitting challenges would be substantial. Money removed from consumer and business 

spending to pay for higher electric rates will dampen an already weak recovery. Option one will 

reduce job development and growth in my state. Unnecessary and costly regulation places added 

stress on businesses to remain viable.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-10366-1

Organization1:

Commenter1:S. Woods

Commenter Type: Private Citizen

Classification: Non-substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
197

Comment Excerpt Text:

I understand from our (AG) that he is handling business for the state of Oregon. The (AG'S) plan 

is working. I'm hoping that our model from our state will help as a role model for the other states 

to follow.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-10483-46

Organization1:Utility Solid Waste Activities Group (USWAG) et al.

Commenter1: James R. Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

C. The Subtitle D Program Must Include A Mechanism For State Implementation Of The CCR 

Rules

While USWAG supports the Subtitle D Prime option (with the adjustments discussed below), a 

major shortcoming of this approach, as well as with the other Subtitle D alternatives, is the lack 

of any mechanism for qualified state programs to step in and directly administer the Subtitle D 

regulations, where the state programs meet or exceed the federal controls. Such an approach 

makes no practical sense, and would result in parallel and redundant regulatory programs for the 

same materials and, more importantly, would directly contravene the Bevill Amendment‘s 

directive that EPA avoid duplication of effort with pre-existing regulatory programs. See RCRA 

8002(n). [Footnote 34: This section provides, in relevant part, that “the Administrator shall, as he 

deems appropriate, review studies and other actions of other Federal and State agencies 

concerning [CCRs] and invite participation by other concerned parties, including industry and 

other Federal and State agencies, with a view toward avoiding duplication of effort.” 42 U.S.C. § 

6982(n). ] EPA has previously 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 Congress‘s admonition in the Bevill Amendment against duplication of efforts by other 

federal and state agencies. 65 Fed. Reg. at 32215. Unfortunately, EPA has failed to adhere to this 

congressional directive in the proposed Subtitle D regulatory alternatives, including the Subtitle 

D Prime option.

As a result of its findings in the final 2000 Regulatory Determination and the supplemental 

DOE/EPA Report of state CCR programs, EPA is well aware that there are many mature state 

CCR regulatory programs with permitting, liner, and groundwater monitoring controls similar to 

those proposed in the Subtitle D options. In fact, EPA concluded in its 2000 Regulatory 

Determination that state CCR controls have “substantially improved over the last 15 years,” and 

that a “high percentage of states had authority to impose protective management standards on 

surface impoundments and landfills, especially for groundwater monitoring, liners, and leachate 

collection . . . .” Id. at 32229. The DOE/EPA Report, which evaluated changes in state CCR 

controls that occurred after 1995 (the cut-off date for the data used in the 1999 Report to 
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Congress), found even further improvements in state CCR controls. Based on the states 

surveyed, the report found more stringent state CCR controls with respect to permitting, liner, 

groundwater monitoring, leachate collection, closure and post-closure care, and siting 

requirements. DOE/EPA Report at S-8.

In addition, the most recent survey of state CCR controls compiled in 2009 by ASTSWMO 

confirms the increasing level of protection provided by state controls, finding, among other 

things, that 86% of the states with CCR landfills and 69% of states with CCR surface 

impoundments have permitting requirements for these disposal units. Letter from ASTSWMO to 

Matt Hale, EPA (April 1, 2009) (attached as Appendix 12). Nonetheless, under all the proposed

Subtitle D options, these state controls would be administered in addition to and without 

coordination with nearly identical, self implementing federal controls. Such duplication is both 

unnecessary and unduly burdensome.

Under this dual regulatory approach, for example, an owner/operator of a CCR disposal facility 

could be found to be in non-compliance with a groundwater monitoring requirement that is 

contained in both the Subtitle D self-implementing rule and in an independently administered 

state regulatory program. In these circumstances, the owner/operator could be subject to a citizen 

suit enforcement action in federal court for alleged violation of the self-implementing Subtitle D 

rule, and to a wholly separate enforcement action in state court for violation of the parallel state 

requirement. This makes no sense; apart from the waste of federal and state judicial resources, it 

could result in inconsistent federal and state court determinations with respect to an identical 

regulatory requirement.

It is essential that any final Subtitle D rules for CCRs include a mechanism for qualified state 

programs to administer the rules in lieu of the self-implementing approach set forth in the 

proposal. As discussed below, EPA could readily develop a process for evaluating state CCR 

controls and determining whether state controls are no less stringent than the final Subtitle D 

controls (much like EPA does now in the case of municipal solid waste landfills under 40 C.F.R. 

Part 258). In those states that have 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 involvement in administration of the CCR rules that EPA concluded was appropriate in 

its Report to Congress and final Regulatory Determinations, and avoid duplication of regulatory 

controls as directed by the Bevill Amendment.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
199

Comment Number: EPA-HQ-RCRA-2009-0640-10550-2

Organization1:Lake Wylie Marine Commission (LWMC)

Commenter1: H. S. Hanks

Commenter Type: Local Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.6

Comment Excerpt Text:

Subtitle D is weak. States have proven that they are not going to appropriate adequate funds to 

monitor and inspect coal ash [illeible]. Clearly Tennessee, North Carolina, South Carolina, and 

Alabama are not inspecting and testing CCR storage at a reasonable level. The EPA is going to 

have to inspect or require the states to test and inspect storage, transportation, and disposal of 

CCR.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-10592_DC-006-1

Organization1:Environmental Integrity Project (EIP)

Commenter1:Lisa Widawsky

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.4

Comment Excerpt Text:

Although Pennsylvania has among the most extensive coal ash disposal regulations in the 

country, requiring liners, groundwater monitoring, and other protections that many other states in 

the 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 

protection 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, dangerous “so-called beneficial uses” like reclamation of abandoned mines 

with coal ash. These deficiencies in the state regulatory scheme have put communities at risk 

despite the state’s intention to regulate this toxic waste stream with more stringent regulations 

than most other states and especially most other coal states. I’d like to talk today about some of 
200

the people I have met and how an EPA Subtitle C regulation is the only regulatory mechanism 

that will save them from the perils of mismanaged disposal of coal ash.

When you are deciding whether to regulate coal ash under the 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 improvements 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 maximum 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 ADEP 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 regulations 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 1992, FirstEnergy has been permitted to continue dumping arsenic-laden 

coal ash there, to the tune of up to 1 to 3 million gallons per day, and even secured an expansion 

in 2006 dump ash at a higher elevation in the impoundment than ever before allowed. This High 

Hazard impoundment is kept back from the Ohio River and the Ohio 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 acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.
201

Comment Number: EPA-HQ-RCRA-2009-0640-10623_DC-037-1

Organization1:Maryland Energy Report

Commenter1:John N. Howley

Commenter Type: Media

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

I would like to bring to the attention of EPA some new information from Maryland that may 

assist the Agency in completing its work on the Proposed Rule on the Disposal of Coal 

Combustion Residues (CCRs) from Electric Utilities.

Maryland is in the middle of transforming its coal-fired power generation sector and this will 

mean big improvements in air quality. The 2006 Maryland Healthy Air Act (HAA) will 

significantly reduce Nitrogen Oxides, Sulfur Dioxides, and Mercury emissions by 2013. (Power 

plants cannot purchase emissions permits from out of state.)

Meanwhile, Maryland’s new regulations on the disposal of toxic CCRs took effect at the end of 

2008. [Footnote 1: EPA has noted our state’s new CCR regulations -- although the Regulatory 

Impact Analysis shows Maryland as having no regulations. Exhibit E1, Appendix for Regulatory 

Impact Analysis For EPA’s Proposed RCRA Regulation Of Coal Combustion Residues 

Generated by the Electric Utility Industry.] (The state has proposed additional regulation 

addressing beneficial use and transportation of CCRs.)

Maryland is a small state but we do burn our share of toxic coal. EPA has taken note of the most 

serious instances of damage caused by improper disposal of CCRs in our state. These include the 

Faulkner Flyash Site and the sand and gravel pit in Gambrills, Maryland. The Maryland 

Department of the Environment (MOE) reports a total of 33 toxic CCR disposal sites. [Footnote 

2: MOE. Facts About Coal Combustion Byproduct Sites in Maryland, 

http://www.mde.state.md.us/assets/documentiFactSheetCCBSites.pdf.]

The new regulations require annual reports from CCR generators. As generators implement the 

new emissions controls, these reports could provide EPA with a useful case study that can inform 

projections of the ratio of CCRs to tons of coal burned. [Footnote 3: EPA’s Regulatory Impact 

Analysis uses a fixed ratio. In the Appendix, EPA also displays a rising ratio, based on 

projections from recent years. Table F-6, p. 271, Appendix for Regulatory Impact Analysis For 

EPA’s Proposed RCRA Regulation Of Coal Combustion Residues Generated by the Electric 

Utility Industry.]

According to MOE, in 2008, “A total of approximately 2 million tons of coal ash (fly and bottom 

ash) is generated annually from Maryland plants.” MOE goes on to state that:

FGD sludge will be generated beginning in 2010 ... once flue gas desulphurization equipment 

(also known as “scrubbers’) is operational, as required under the Healthy Air Act. Once these 
202

pollutant control technologies are operational approximately 2.5 million tons of scrubber sludge 

will be generated annually. [Footnote 4: MDE, Facts About Coal Combustion Byproducts, 

http://www.mde.state.md.uslassets/document/CCBs_Fact_Sheet.pdf.]

Maryland’s experience could mean that the nationwide increase resulting from better air quality 

controls may be even faster than EPA projects.

The MOE reports throw light on another issue that EPA should take note of: the interstate 

transport of CCRs. Generator reports for 2009 show that more half of the CCRs generated were 

transported out of state for disposal. [Footnote 5: MDE, 2009 Coal Combustion Byproducts 

(CCBs) -- Generation, Disposition, and Sources, 

http://www.mde.state.md.us/assets/documentlccb/2009_Coal_Ash_ 

Volume_Reports_Summary.pdf] These materials went to landfills, minefills as well as 

manufacturing plants.

Please note that these figures do not yet include any scrubber sludge. Unless new permitted 

landfills or processing capacity is put in place quickly, it is likely that much of the additional 2.5 

million tons of scrubber sludge predicted by MOE will also be exported from the state. [Footnote 

6: There is an active application before the Public Service Commission to build a CCR 

processing facility at the Morgantown generating plant; see Case 9229. August 30, 2010 2 

MarylandEnergyReport.org]

In the absence of a strong, nationwide regulatory structure, it is reasonable to assume that as 

individual states improve their own regulations, toxic coal combustion waste may flow across 

state lines in increasing amounts. It is quite common for economic activities to shift away from 

jurisdictions with stronger protections and move towards those that are more lax.

While Maryland’s rate of export mayor may not be representative, it should serve as a reminder 

that toxic CCRs do move across state lines and will likely do so in higher volumes in the years to 

come.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-10632_DC-047-1

Organization1:Virginia Department of Environmental Quality

Commenter1:Jeffery Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
203

Other Sections: 4.2.5

Comment Excerpt Text:

Good morning, my name is Jeffery Steers and I am the Waste Division Director for the Virginia 

Department of Environmental Quality. Today, I am providing an abbreviated version of our 

Agency's formal written comments on EPA's proposed regulatory schemes for Coal Combustion 

Residue, commonly referred to as CCR. While the Commonwealth acknowledges that 

improvements to the management of CCR are needed, such regulatory changes are best left to 

individual states. Virginia has a strong solid waste program and that regulates the management of 

coal ash as industrial waste under this program. Virginia’s regulations provide requirements for 

CCR management, including appropriate criteria for disposal units, while also allowing for its 

beneficial reuse in a manner that 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 comprehensive 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 Endangerments 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 IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-10634_DC-049-1

Organization1:PPL Corporation (PPL)

Commenter1:Craig S. Shamory

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.3

Comment Excerpt Text:

PPL owns or controls nearly 12,000 megawatts of merchant power generation in 5 states, 

including 4 coal plants in Pennsylvania and Montana. Annually, we generate about 3 million tons 

of coal combustion residuals - CCRs - and of that total we beneficially use about 2 million tons. 
204

CCRs from our Pennsylvania plants have been regulated effectively since 1992 as a nonhazardous waste under Pennsylvania's Residual Waste Regulations. Furthermore, Pennsylvania 

and Montana recognize that properly implemented beneficial uses are an environmentally 

responsible option for managing these materials.

Response: The commenter is referred to Unit IV of the preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-10636_DC-076-4

Organization1:Sierra Club

Commenter1:Leslie G. Fields

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.2.3

Comment Excerpt Text:

In West Virginia, the Sierra Club EJ organizer has reported that even though WV ranks 5th in the 

country for coal ash generation, many communities do not know of the extent of contamination 

or dangers of living around ponds. The U.S. EPA has not yet gathered information on coal ash 

landfills, so a detailed breakdown is not yet available. However, according to a 2007 EPA risk 

assessment, five surface impoundments and landfills in West Virginia are unlined, and two are 

only clay-lined. [Footnote 4: www.action.sierraclub.org/site/DocServer/wv-coal-ash-factsheet] 

Of these sites, four do not have a leachate collection system in place, and three have no 

groundwater monitoring. [Footnote 5: Id.]

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-10641_DC-081-2

Organization1:

Commenter1:Lisa Graves-Marcucci

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:
205

Throughout the next few weeks, you will be introduced to real people living - and dying- with 

the dangers created by mismanaged coal ash dumping. Pro-industry policies at the PA DEP are 

running rampant- as evidence by file reviews and the recent reports, Out of Control and In 

Harm's Way.

I have reviewed tens of thousands of PA DEP documents throughout the past decade and I can 

tell you unequivocally -1 have never reviewed a coal ash disposal site in PA that didn’t have 

contamination. Every single site I have ever reviewed has contamination noted- highlighted 

in yellow or circled in pencil. Time and time again the PA DEP does nothing but file the 

documents. Enforcement is non-existent - industry is given "get out of jail free" cards -and 

the damage is allowed to persist.

I ask you to remember our faces- we are real people who don't have high-powered lobbyists to 

speak on our behalf. Hundreds of us will be attending these important hearings. We ask that you 

listen to our stories and concerns- these are actual accounts of what's really going on - not the 

lobbyists' or state regulators' mythical versions.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-10670_DC-055-1

Organization1:Maryland Commission on Environmental Justice and Sustainable 

Communities

Commenter1:Vernice Miller-Travis

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 6.1.1

Comment Excerpt Text:

Coal Combustion Waste Sites Have Contaminated Drinking Water in Maryland

As Vice Chair of the Maryland Commission on Environmental Justice and Sustainable 

Communities, issues of environmental injustice, and ecological degradation and disproportionate 

human health impact in our state are of great concern to me. Maryland is home to multiple coal 

combustion waste sites that have contaminated drinking water wells and polluted surface waters 

and the environment with arsenic, cadmium, selenium, nickel, thallium, and other toxic 

pollutants. In 2008, a major energy producer in our state entered into a multimillion dollar 

settlement agreement to clean up arsenic, cadmium, and other pollutants in drinking water wells. 

The state of Maryland has taken enforcement action against another power company and two of 

its subsidiaries for Clean Water Act violations at the Faulkner coal combustion waste facility in 

Charles County, MD, and has recently filed a complaint in federal court for CWA violations at 

this same Power company's coal combustion waste landfill in Brandywine, MD in Prince 

George's County not far from the town where I live. The site in Brandywine has contaminated 

groundwater and is threatening the drinking water wells of residents in this town, and threatens 

the Patuxent River, a tributary to the Chesapeake Bay.
206

Our state has recently promulgated coal combustion waste regulations which are a step in the 

right direction, yet they do not go far enough to provide communities comprehensive protection 

from the risks poses by CCW landfills and coal ponds.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-10670_DC-055-3

Organization1:Maryland Commission on Environmental Justice and Sustainable 

Communities

Commenter1:Vernice Miller-Travis

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.4 3.1.1 6.1.1

Comment Excerpt Text:

Drinking Water Is At Risk

Unfortunately states do not generally require off-site monitoring of drinking water wells beyond 

the fenceline, even when there is documented contamination at the coal ash waste site boundary. 

Where off-site sampling of private wells occurred, contaminated drinking water was found in

every case. Even when groundwater is periodically sampled for pollutants state agencies usually 

fail to sample beyond Coal Combustion Waste property boundaries to see how far that pollution 

has traveled.

Many states require no groundwater monitoring at 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 ash 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, 

agricultural 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 groundwater 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 the 

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 operators 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 
207

of leachate or wastewater that are based on best available treatment and containment standards, 

and which are designed to protect rivers and streams. This is particularly important in a state like 

Maryland where rivers and streams empty into the ecologically fragile and highly threatened 

Chesapeake Bay.

For these reasons and so many more, coal ash must be regulated under RCRA subtitle C, as 

special waste by US EPA, with all the attenuated safeguards that requires.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-10697_DEN-007-2

Organization1:Wyoming Department of Environmental Quality

Commenter1:John Corra

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

CCR is a regulated solid waste in Wyoming. CCR disposal is regulated by two separate WDEQ 

Divisions; the Solid and Hazardous Waste Division (SHWD) and the Water Quality Division 

(WQD). SHWD regulates dry CCR disposal under W.S. § 35-11-501 to 35-11-504 and the 

Industrial Landfill Regulations in Chapter 3 of our Solid Waste Rules and Regulations. SHWD 

also regulates the beneficial use of CCR by providing case-by case permit exemptions which

may be revoked if CCR is misused. WQD regulates surface impoundments for the disposal of 

wet CCR as wastewater under W.S. § 35-11-101 to 115, 35-11-301 to 312, 35-11-901 and 

Chapters 3, 8 and 11 of our Water Quality Rules and Regulations.

Response: The Agency acknowledges and appreciates the comment. 
208

Comment Number: EPA-HQ-RCRA-2009-0640-10700_DEN-012-3

Organization1:Greenpeace USA

Commenter1:Robert Gardner

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.4

Comment Excerpt Text:

Business as usual will not protect the health and welfare of the American people. Responding to 

pressure from the utility industry, prior administrations have allowed the industry to ‘police 

itself’ or self-regulate under a patchwork of state directives leading to the extensive 

contamination of water and land by toxic heavy metals. This approach has not and will not 

protect streams, ponds, rivers, lakes and other waters.

Everyone in this room probably remembers the Kingston TV A Spill in Harriman, Tennessee? 

The failure of that sludge impoundment released over 1 billion gallons of toxic coal ash sludge 

over 300 acres, poisoning everything in its path. The response? It was “cleaned up” by shipping 

it on over to Perry County, Alabama, which currently has no regulations regarding disposal of 

coal ash. None. This is unacceptable.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-10712_DEN-024-1

Organization1:Colorado Department of Public Health and Environment

Commenter1:Joe Schieffelin

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.3.5

Comment Excerpt Text:

The Solid and Hazardous Waste Program regulates all disposal and beneficial re-use of Coal 

Combustion Residuals in Colorado.

We have representative analytical data on the Coal Combustion Residuals produced in Colorado 

and no data has ever indicated levels of contamination close to those that would make the 

residuals hazardous waste.

We have ground water monitoring data around Coal Combustion Residuals de-watering and 

disposal areas and no data indicates a release to ground water has occurred.

However, if a release were to occur: We have enforcement authority to rapidly and effectively 

deal with non-compliant situations, including releases to soil, ground water, surface water, and 

exposures to people. This includes administrative order authority with injunctive relief, 
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corrective action authority, and penalties up to $10,000/day/violation. Colorado actively uses 

these authorities in implementation of our Solid Waste Program.

Through this same regulatory construct, we safely and effectively regulate municipal solid waste 

everyday - a waste stream with higher hazards than Coal Combustion Residuals because it 

includes household hazardous wastes, heavy metals, and organic, acidic, and alkaline materials.

Through this same regulatory construct, we safely and effectively regulate municipal solid waste 

everyday - a waste stream with higher hazards than Coal Combustion Residuals because it 

includes household hazardous wastes, heavy metals, and organic, acidic, and alkaline materials.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-10718_DEN-030-2

Organization1:Rocker Six Cattle Company

Commenter1:Clint McRae

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 8.6.1 1.1

Comment Excerpt Text:

Subtitle C is wholly insufficient to stop groundwater impacts from the PP&L power plants. Such 

requirements have been in place for decades in Montana, and the state has done nothing to stem 

the contamination in our livestock wells.

PP&L’s $25 million settlement to 60 homeowners in Colstrip is an admission that ash pond 

effluent is hazardous. This leak creates a human health issue. The 3 and 4 EHP leaks water that is 

16 times the toxic level to cause death in cattle. This is an agricultural herd health issue. This is 

not benign, it is hazardous, and as a rancher who lives down gradient of a leaking ash pond, I ask 
210

you to please designate coal ash as hazardous.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-10736_DEN-048-1

Organization1:Earthjustice

Commenter1:Melanie Kay

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.2.2

Comment Excerpt Text:

First, the current laws of western states governing coal ash disposal are grossly inadequate. Of 

the ten states surrounding Colorado that generate the largest volumes of ash, [Footnote 1: AZ, 

CO, KS. MT. NO, NM, NV, OK, UT. and WY.] seven do not require groundwater monitoring at 

coal ash surface impoundments. This single regulatory requirement is so important that EPA uses 

it as a benchmark to predict whether a state will adopt the proposed subtitle D guidelines. In 

other words, if a state has not yet required its most dangerous waste dumps to monitor the 

underlying groundwater, then EPA assumes that these states will not enforce or adopt new

guidelines that are not mandatory. Thus EPA believes that the west, with its booming coal 

industry, is out of luck under the subtitle D scheme. And the status quo of state regulations is 

indeed dismal. In fact, Kansas, Montana, New Mexico and Utah exempt coal ash from their solid 

waste regulations entirely. Consequently, landfills and waste ponds are not required by law in 

these four states to employ even the most basic safeguards such as liners, monitoring, corrective 

action and financial assurance.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-10751_DEN-063-3

Organization1:Arizona Public Service Company (APS)

Commenter1:Scott Davis
211

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5.1

Comment Excerpt Text:

In Arizona, coal ash disposal units are regulated under the Department of Environmental 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 acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-10752_DEN-064-3

Organization1:Xcel Energy

Commenter1:Terry Coss

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5.1

Comment Excerpt Text:

Our third concern is that EPA's proposal discounts the important role that many States play 

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 SubtitleD. Federal efforts should focus on the few states that may need improvement.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-10771_DA-002-3

Organization1:Dynegy Inc.

Commenter1:Linda Whelan

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
212

Other Sections: 4.2.1 4.2.5 3.2.3

Comment Excerpt Text:

EPA's stated reason for favoring the Subtitle C hazardous approach is concern regarding 

enforcement capabilities. Yet federal regulation of CCRs as non-hazardous provides extensive 

enforcement avenues:

1. Most states already have robust regulatory programs that apply to CCR management. Many 

states are likely to adopt federal Subtitle D requirements. Even in the absence of a 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 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 environment". The 

threshold for EPA to use this authority is low, as the Courts have interpreted RCRA § 7003 

broadly.

4. Finally, to ensure compliance of CCR operations, EPA also has separate enforcement 

authority under the federal Clean Water Act, as does the Office of Surface Mining under the 

federal Surface Mining Reclamation and Enforcement Act.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-10806_DA-036-1

Organization1:Luminant

Commenter1:Julie Prejean

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.2.4

Comment Excerpt Text:

With Texas Commission on Environmental Quality’s oversight, Luminant’s coal-fueled power 

plants, such as Oak Grove, make it a priority to routinely inspect and maintain our CCR landfills 

and surface impoundments. An annual critical impoundment inspection is conducted by a 

registered Professional Engineer on surface impoundments that contain CCRs. These reports are 
213

kept on site for a minimum of three years as part of the company’s impoundment inspection 

program.

All of our managed ash disposal areas are also inspected by the TCEQ periodically to ensure 

compliance with all applicable state and federal regulations.

TCEQ has a comprehensive regulatory program to safely regulate CCR disposal practices. 

Environmental risk is dependent in part upon site specific factors such as depth to groundwater, 

annual rainfall, and the amount of clay present in the soil.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-10807_DA-037-1

Organization1:Earthjustice, EIP and Sierra Club

Commenter1:

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 8.5 6.1.1

Comment Excerpt Text:

[See original comment for copy of "Coal Ash: SIX MYTHS the Utility Industry Wants You to 

Believe and SIX FACTS You Need to Know," published by Earthjustice, EIP and Sierra Club]

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-10809_DA-039-2

Organization1:

Commenter1:Rogers Dennis

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Texas is second in the nation in coal ash generation. There are no leachate collection systems in 

Texas, and there is no groundwater monitoring. 
214

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-10820_DA-050-2

Organization1:Association of Electric Companies of Texas (AECT)

Commenter1:Walt Baum

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Texas Commission on Environmental Quality (TCEQ) oversees the design, construction, 

monitoring, reporting and final closure of all CCR disposal facilities. TCEQ's robust state 

regulatory program ensures the disposal and reuse of CCRs are conducted in a manner that is 

protective of human health and the environment.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-10822_DA-052-1

Organization1:Luminant

Commenter1:Bobby McNeeley

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As part of my responsibilities at Big Brown, I ensure that our plant complies with the Texas 

Commission on Environmental Quality's Coal Combustion Residuals handling and disposal 

regulations. These regulations are comprehensive and effective. As a whle, Luminant is in 

compliance with TCEQ' s CCR regulations, and we have never experienced a failure at any of 

our facilities.
215

I take my work very seriously, as do my fellow co-workers. We live in the communities where 

CCRs are stored and disposed. We owe it to our employees, our communities and the 

environment to manage CCRs safely and responsibly.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-10837_DA-067-2

Organization1:Luminant

Commenter1:Usha Turner

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

On four separate occasions, most recently in 2000, EPA made a regulatory determination that 

concluded that Subtitle C of RCRA is not the appropriate regulatory regime for regulating CCRs 

and that regulation as non-hazardous waste by the states is the appropriate option for ensuring 

the safe management of these materials while preserving reuse.

The State of Texas, through the Texas Commission on Environmental Quality (TCEQ), already 

has a comprehensive regulatory program for the storage and disposal of CCRs that oversees the 

design, construction, monitoring, reporting, and final closure of all CCR disposal facilities.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-10842_DA-072-1

Organization1:NRG Energy, Inc. (NRG)

Commenter1:Jeffrey Davis

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1 4.5

Comment Excerpt Text:

NRG supports the development of federal regulations for Coal Combustion Residuals (CCRs) 

under RCRA’s Subtitle D non-hazardous waste program. We believe that a nonhazardous 

program is the best path forward because it will enable EPA to establish a program that protects 

the environment while not impacting beneficial use or the economy.

NRG will provide written comments before the November 19th deadline. We support the 

comments made by the Texas Coal Combustion Products Coalition and the Utility Solid Waste 

Activities Group.

Texas has a strong solid waste disposal program and has successfully managed the disposal of 
216

CCRs under this program for decades. The program in Texas provides the regulatory oversight 

necessary to ensure that the management of CCRs is protective of human health and the 

environment. NRG requests that EPA work with the states and develop a program that 

recognizes the role of each state to develop their own regulatory programs to ensure compliance 

with the newly adopted federal criteria.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-11003_CHA-038-1

Organization1:Tampa Electric Company (TECO)

Commenter1:Randy Melton

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.5 5.6

Comment Excerpt Text:

At both coal plants, we have worked with the Florida Department of Environmental Protection 

(FDEP) to modernize the facility's existing CCR management units. These improvements have 

been required by the FDEP to ensure the protection of groundwater and surface water resources 

in the vicinity of these plants. Projects have included the capping and closure of inactive former 

disposal units, the lining of CCR impoundments and the redesign of handling systems to 

eliminate onsite storage of CCR products prior to beneficial reuse. The impoundments and 

landfills at our plants have been retrofitted with liner systems that meet the permeability and 

leachate control standards required by the federal Subtitle D regulations. Any future facilities 

will also be required to meet these standards. Our experience is provided as an example to 

illustrate the effectiveness of Florida's solid waste regulatory program in addressing the safety of 

CCR management units that are constructed within our state. Other Florida utilities have similar 

experience with this regulatory program, which is already authorized under federal Subtitle D.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
217

Comment Number: EPA-HQ-RCRA-2009-0640-11050_CHA-085-1

Organization1:American Rivers and Appalachian Voices, et al.

Commenter1:

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

[ATTACHMENT: see original attachment for report entitled, "The State of Coal Ash Regulation 

in North Carolina"]

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-11058_CHA-093-1

Organization1:North Carolina Conservation Network

Commenter1:Daniel H. Conrad

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:

The first item I would like to enter into the record is a document, endorsed by 17 different North 

Carolina environmental groups, detailing the need for coal combustion residue regulation in 

North Carolina. The second item I would like to enter into the record is a petition signed by over 

1500 concerned North Carolina citizens urging that the EPA enact the more stringent of their two 

proposals, regulating coal combustion residues under Subtitle C of RCRA.

Briefly, I would like to try to paint a picture of why this regulation is both, necessary, and urgent, 

for the EPA to adopt, especially in North Carolina. North Carolina contains a disproportionate 

amount of coal ash impoundments in comparison to the rest of the country. The TVA disaster, 

despite occurring just across the border in neighboring Tennessee, served as wake up call to the 

need to regulate this waste that has gone wholly unchecked on both a national and state level for 

too long. Industry and Investor Owned Utilities have been able to exert their force on the State 

level to prevent any meaningful regulation from occurring. The EPA is in the best position to fill 

this regulation gap, not only due to the lack of action by States, including North Carolina, but 

also because they already have the tools by which to do so.

For context RCRA’s stated objective is to “promote the protection of health and the environment 

and to conserve valuable material and energy resources by” –among other things regulating 

hazardous waste management practices, generation, and disposal.

RCRA defines “hazardous waste” as:

a solid waste, or combination of solid wastes, which because of its quantity, concentration, or 
218

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.

I would like to draw your attention to two specific words in the statute: “may” and “or.” The 

word “may” indicates, not that an outcome must occur, but rather only that it possibly could 

occur. The word “or” establishes that only one of the two listed criteria must be met. I would 

submit to you that coal combustion residues actually meet both.

Regarding criteria (A) - the EPA itself has concluded that 49 “high hazard potential” coal ash 

surface impoundments exist in the United States, 12 in North Carolina alone. According to the 

EPA, high hazard potential “indicates that a failure will probably cause loss of human life.” It is 

difficult to imagine a case where “loss of human life” would not qualify as an “increase in 

mortality or an increase in serious irreversible, or incapacitating reversible, illness”

Regarding criteria (B) - all 13 of the coal ash ponds in North Carolina that have conducted 

testing have been found to violate NC groundwater standards. In one case, arsenic concentrations 

were measured at 44 times the federal primary Maximum Contaminant Level (MCL). Again, it is 

difficult to imagine a scenario where arsenic concentrations found in contaminated groundwater 

at 44 times the federal MCL would not possibly “pose a substantial present or potential hazard to 

human health or the environment.”

Even were the terms “may” and “or” changed in the statute to “will” and “and” it appears evident 

that coal combustion residues would still be encapsulated by the definition of hazardous waste. 

With that in mind, the North Carolina Conservation Network urges that at a minimum the EPA 

adopt the more stringent of its two proposals, regulating coal combustion residues under subtitle 

C of RCRA. Thank you for your time and the opportunity to speak before you today.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-11077_CHA-112-1

Organization1:South Carolina Coastal Conservation League

Commenter1:Nancy Cave

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
219

Comment Excerpt Text:

South Carolina has 14 coal generating plants producing over 2.1 million tons of ash annually. 

This ranks South Carolina 20th in the country for coal ash generation. The coal ash is placed in 

22 ash ponds at 9 plants and at least five landfills. According to the 2007 EPA Risk Assessment, 

6 of these ponds and landfills are unlined and one is clay lined; of these sites 6 do not have a 

leachate system. All of the plants are sited on rivers and lakes; rivers that are sources of drinking 

water for communities up and down their length. In Georgetown County where I live the state 

owned utility, Santee Cooper operates the Winyah Power Station with 6 ash ponds near or on the 

Sampit River. In 2008 this plant had a wastewater leak. In Horry County Santee Cooper operates 

the Dolphus M. Grainger Power Station with 2 ash ponds on the Waccamaw River which 

supplies drinking water to the communities of Conway, Myrtle Beach, Surfside Beach and 

Georgetown to name a few. The Environmental Integrity Project found that the Grainger ash 

ponds contaminated groundwater near the Waccamaw River with arsenic 91 times the state 

drinking water standard. Ruling coal ash to be a hazardous waste is a precautionary action that 

will protect the waters of South Carolina and the nation, but more importantly a Subtitle C ruling 

will protect children and adults from toxins that according to EPA's own studies cause serious 

health threats. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-11179_CHI-010-1

Organization1:Illinois Environmental Protection Agency

Commenter1:

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

[Attachment: see original comment for copy of CCR Management fact sheet published by 

Illinois Environmental Protection Agency (September 2010)]

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-11186_CHI-017-3

Organization1:PINES Group

Commenter1:Paul Kysel

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The STATE Failed Its Duty To Protect Its Citizens 
220

In April 2000, the residents of the Town of Pines began to notice that their well-sourced drinking 

water tasted unusual, so they reported it to the Indiana Department of Environmental 

Management (IDEM). Incredibly, IDEM knew since the 1980's that the nearby coal ash dump -

Yard 520- was leaking arsenic and other contaminants into a nearby creek. 

In addition to contaminating the groundwater in Town of Pines, the Yard 520 Landfill also 

threatens protected streams in the Indiana Dunes National Lakeshore. Contaminated groundwater 

from Yard 520 flows into Brown Ditch, a creek that flows along the edge of the landfill and 

eventually into the National Park before discharging into Lake Michigan two miles from the 

municipal water supply of Michigan City - *the same municipal water source now providing 

water to the portion of town residents lucky enough to be offered municipal water to replace their 

contaminated wells. 

Downstream of the landfill, the creek carries high levels of boron and molybdenum. Indiana 

Dunes National Lakeshore is an especially important feeding and resting area for migrating land 

and water birds. Fish, birds and mammals can be harmed by exposure to the contaminants in coal 

combustion waste. 

According to EPA's comparison of upstream and downstream water samples from Brown Ditch, 

the downstream levels of boron and molybdenum are 116 and 90 times, respectively; the levels 

found upstream. Levels of boron and manganese exceed Indiana's minimum water quality 

standards and also violate the anti-degradation requirements of Indiana's water quality standards. 

Degradation of water quality continues in Brown Ditch as it enters the Indiana Dunes National 

Lakeshore. Highly contaminated water also flows into nearby Kintzel Ditch, a stream that has 

been designated by the Indiana Department of Natural Resources as a rearing or imprinting area 

for native salmon, thus requiring protection. Brown Ditch also provides sanctuary at its lower 

reaches for migrating Coho and Chinook salmon and Steelhead trout.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. The commenter is also 

referred to the preamble discussion in Unit XI on damage cases as well as the supporting 

documentation on these cases which can be found in the RCRA docket supporting this rule.

Comment Number: EPA-HQ-RCRA-2009-0640-11194_CHI-025-4

Organization1:Great River Energy (GRE)

Commenter1:Richard Lancaster

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:
221

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.3 4.5

Comment Excerpt Text:

GRE operates in states with well developed waste regulations and standards that parallel, or are 

more stringent than, Subtitle D. These states have beneficial use regulations or standards that 

would not allow beneficial use if CCRs were determined to be hazardous. We also feel that those 

states with well developed programs should be allowed to continue to implement their Subtitle D 

compliant programs.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-11287_CHI-065-1

Organization1:City Water Light & Power, Springfield, IL

Commenter1:Christine Zeman

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.3 7.1.2.5

Comment Excerpt Text:

Illinois already adequately regulate coal combustion byproducts, ash ponds and ash landfills, so 

as to protect against the incidents like those that gave rise to this regulatory proposal. Illinois has 

long regulated the integrity of ash structures, has strict groundwater standards and strictly limits 

beneficial uses of coal combustion byproducts, so as to protect the environment, while 

encouraging its reuse. Further, the Illinois Pollution Control Board recently established strict 

closure requirements for specific ash ponds.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-11296_P-002-3

Organization1:FirstEnergy

Commenter1:Ray Evans
222

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1 10.5.2.3

Comment Excerpt Text:

FirstEnergy supports U.S. EPA’s regulation of CCRs as non-hazardous waste, which provides 

for consistent regulation across the nation. And we are committed to the safe and 

environmentally sound reuse and disposal of this material.

With ash recycling and disposal facilities in Pennsylvania and Ohio, we work closely with highly 

trained professionals at federal and state regulatory agencies to ensure we meet all current 

standards. Our CCR recycling and disposal operations are routinely inspected by regulators and 

independent engineers, and daily by our staff. Additionally, we are in the process of siting a drystorage facility to replace our only existing wet-storage facility for CCRs.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-11304_P-010-3

Organization1:Pennsylvania Coal Association (PCA)

Commenter1:Josie Gaskey

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.3

Comment Excerpt Text:

Pennsylvania has some of the strictest and most effective regulations in the country for mining 

and management and disposal of coal combustion residuals and has an effective regulatory 

infrastructure in place to ensure the safe management of these materials. Currently, 

approximately 65 percent of CCR material is used in beneficial applications. Beneficial use of 

CCRs is an appropriate environmental solution as evidenced by EPA's support of CCRs in 

working with the power generation industry and the mining industry. We supports the regulation 

of CCRs that allows for continued beneficial uses for construction, manufacturing and other 

purposes, as well as integration with the current Pennsylvania regulatory program.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
223

Comment Number: EPA-HQ-RCRA-2009-0640-11344_P-057-1

Organization1:Pennsylvania Department of Environmental Protection

Commenter1:Michael G. Forbeck

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.5 3.2.3

Comment Excerpt Text:

Pennsylvania has residual waste regulations in place that govern the transportation, storage and 

disposal of CCR. These regulations and the implementation are based on sound scientific and 

engineering standards, and are similar to the Commonwealth's RCRA Subtitle D-authorized 

municipal waste regulations and have been in effect since 1992. CCR landfills that have been 

designed and operated in accordance with these regulations have not resulted in pollution to 

groundwater, surface water or air, and they are the same residual waste regulations that were 

used as a template for EPA's existing Guide for Industrial Waste Management. According to 

EPA, that Guide was designed to protect groundwater, surface water and air resources under an 

industrial Subtitle D-like residual waste program. It is unclear why EPA is now considering 

regulating CCR under Subtitle C instead of the current Subtitle D-like EPA guidelines, 

considering the physical and chemical characteristics of CCR present very little potential to 

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 the hazardous 

waste designation EPA is proposing. 

Comparison of Subtitle C and D 

According to EPA, the design and performance standards for the proposed regulations will likely 

be the same no matter what regulatory scheme is chosen. The major differences 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 other 

operational requirements, Pennsylvania regulations already require performance standards that 

exceed those outlined in the Subtitle C or D proposal. By current regulation, PA also requires 

facilities to be permitted or authorized to manage CCR. 

As to the need for EPA enforcement, Pennsylvania's Solid Waste Management Act authorizes 

State enforcement authority and PA DEP exercises that authority. Subtitle D requires State 

programs to have the necessary enforcement authority as 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 Human Health and the Environment as well as 

imminent hazards for releases of solid waste and, therefore, does not need the additional 

authority under Subtitle C. 
224

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-11351_P-064-2

Organization1:Center for Coalfield Justice (CCJ)

Commenter1:Raina Rippel

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 12.1.1.6

Comment Excerpt Text:

We are specifically urging the US EPA to include minefilling projects under new proposed 

federal rules- designation "C." These mine reclamation projects amount to open dumping and 

should be federally regulated. Listing coal ash under the Subtitle D as a non-hazardous waste 

leaves the door open for inadequate enforcement, improper re-use and insufficient monitoring of 

this demonstrably hazardous substance.

Within our state, the PA DEP regulations represent a lack of state regulatory oversight and 

enforcement, because PA DEP advocates coal ash is "beneficial." Given the known or suspected 

health consequences of major coal ash repositories, and the probability that mine filling may 

leach into groundwater, such a "beneficial" use designation is downright dangerous, and serves 

only to pander to industry's need for re-use or improper disposal of this toxic substance.

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

referred to Unit VI of the preamble for a discussion of the applicability of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-11368_P-087-3

Organization1:Greater Pittsburgh Chamber of Commerce

Commenter1:Jeff Rossi

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Pennsylvania already has an established and effective coal waste management program.

Response: The Agency acknowledges and appreciates the comment. 
225

Comment Number: EPA-HQ-RCRA-2009-0640-11391_P-114-3

Organization1:Clean Water Action

Commenter1:Tom Hoffman

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Pennsylvania is a resource rich state but our residents have and will continue to pay a high price 

for that. Streams that are no longer life sustaining. Air that sends kids to the hospital with asthma 

at 4 times the national rate. Flammable drinking water in people's homes.

Leaving things to the state is not an option here in Pennsylvania. We are facing severe budgetary 

shortfalls and our DEP has been slashed to the bone. Our communities are facing serious 

environmental threats from the booming natural gas drilling industry. Our Department of 

Environmental Protection does not have the necessary resources to protect us from those dangers 

let alone do what is necessary to regulate coal ash. Clean Water Action supports strong federal 

regulations on coal ash.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-11402_P-126-1

Organization1:Civil & Environmental Consultants, Inc.

Commenter1:Angelo L. Masullo

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In the state of PA, coal ash is considered to be a residual waste and its disposal is currently 

governed by regulations that control the location, size, design, construction, operation, and 

closure of the landfills.
226

Landfill siting regulations dictate where landfills can go, how close they can be to residences, 

streams and wetlands, floodplains, adjacent properties, and water supplies. The days of dumping 

waste in any convenient area close to the source are long gone.

Lined landfills for coal ash disposal, like those used in P A and the other states my company 

operates in, are not dumps - they are sophisticated facilities constructed with engineered 

components, such as multi-layer lining systems designed to prevent contaminants from leaving 

the landfill, and perimeter groundwater monitoring well networks that act as environmental 

sentinels.

The level of regulatory involvement with these types of facilities, from conception to closure, is 

significant. For a facility to be permitted and constructed, the regulatory agency reviews the 

permit application, coordinates the public involvement process, approves the permit (maybe), 

reviews and approves construction certification reports, oversees operation and environmental 

monitoring, ensures that financial assurance is in place, and monitors closure when the time 

comes.

These facilities are protective of the environment and are fully capable of preventing 

groundwater contamination below and around the disposal facility. My professional opinion is 

that the level of environmental protection provided by lined Subtitle D facilities (such as PA 

Class I residual landfills) is almost the same as that provided by Subtitle C landfills.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-11422_P-153-1

Organization1:Allegheny Energy, Inc.

Commenter1:David C. Cannon, Jr.

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3 3.1.2

Comment Excerpt Text:

Allegheny strongly recommends EPA regulate CCR under the proposed Subtitle D prime 

scenario. Allegheny does not believe coal combustion residuals should be regulated as "special" 

or hazardous waste.

We have been successfully managing CCRs under the Pennsylvania Residual Waste Regulations 

and the West Virginia Solid Waste Regulations for many years. These two state programs, either 
227

of which could serve as a model for a federal program, include all the elements contemplated by 

EPA's proposed Subtitle D rule.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-11423_P-154-1

Organization1:PPL Corporation

Commenter1:Craig Shamory

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.3 10.1.1

Comment Excerpt Text:

PPL owns or controls nearly 12,000 megawatts of merchant power generation in 5 states, 

including 4 coal plants in Pennsylvania and Montana. Annually, we generate about 3 million tons 

of coal combustion residuals - CCRs - and of that total we beneficially use about 2 million tons. 

CCRs from our Pennsylvania plants have been regulated effectively since 1992 as a nonhazardous waste under Pennsylvania's Residual Waste Regulations. Furthermore, Pennsylvania 

and Montana recognize that properly implemented beneficial uses are an environmentally 

responsible option for managing these materials.

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 subtitle 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 

benefits. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
228

Comment Number: EPA-HQ-RCRA-2009-0640-11470_L-047-2

Organization1:

Commenter1:Rick Clewett

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.1 4.1.2 8.9 3.1.1

Comment Excerpt Text:

Proposal D "would not require permits, nor could EPA enforce the requirements. Instead, states 

or citizens could enforce the requirements under RCRA citizen suit authority; the states could 

also enforce any state regulation under their independent state 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 environment and the public. I will use the findings of a justconducted 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 landfills. 

2. Kentucky's regulatory program is not properly addressing this threat; instead, it's getting 

weaker. Even as evidence of contamination mounted in state files, Kentucky reduced monitoring 

requirements, failed to commence enforcement action, and continued to permit new ponds and 

landfills without proper controls. 

3. Kentucky is not comprehensively tracking where CCW contamination is going, putting offsite 

drinking water and communities at risk and allowing CCW discharges to enter our rivers and 

streams. Because heavy metals found in CCW waste are toxic in extremely low concentrations, 

and many of these metals accumulate over time, the combination of information gaps and leaky 

CCW sites is very dangerous.

I am sure the level of regulation of coal combustion waste is as bad or worse in some other 

states. I choose to highlight this study of Kentucky's failure to monitor its numerous coal ash 

ponds and dry fills adequately, let alone to protect its citizens from the damage being done to 

water quality by leaks from these sites, because the study is current and credible, based on the 

state's own records, and because I, my family, and many of my friends live here. It matters to us 

if Cane Run is endangering the wellbeing of people living in some neighborhoods in Louisville 

or if EKPC's Spurlock facility "discharges to three receiving streams that flow into the Ohio 
229

River" and that it has "contaminated underlying groundwater since at least 2005 with arsenic, 

iron, sulfate and IDS exceeding MCLs and SMCLs," with arsenic reaching "16 times the MCL in 

an off-site well 750 feet northeast of the landfill" 

This last statistic comes from a just-release study done by the Environmental Integrity Project, 

Earthjustice, and the Sierra Club and entitled" IN HARM'S WAY: Lack Of Federal Coal Ash 

Regulations Endangers Americans And Their Environmen). This title 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 provide that regulation. Please put forward a strong, 

enforceable rule.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-11504_L-085-3

Organization1:Greenpeace USA

Commenter1:Robert Gardner

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Here, in Kentucky, there are at least three leaking impoundments. There are six high hazard 

impoundments in Kentucky: three at Ghent (Ghent, KY), two at EW Brown (Harrodsburg, KY) 

and one at Big Sandy (Louisa, KY). Within the city of Louisville, there is a High Hazard 

impoundment in its city limits at Cane Creek that LG&E is trying to expand to allow 5.7 million 

cubic yards of CCW on site. This places Kentucky third behind North Carolina (12) and Arizona 

(9) in the number of ‘High Hazard’ ash impoundments nationwide. Specifically, a recent report 

has highlighted three leaking impoundments:

East Kentucky Power Cooperative’s Spurlock Power Station in Maysville, Louisville Gas & 

Electric’s Mill Creek Station in Jefferson County and the Tennessee Valley Authority’s Shawnee 

Fossil Plant near Paducah, Kentucky.

Response: The Agency acknowledges and appreciates the comment. 
230

Comment Number: EPA-HQ-RCRA-2009-0640-11556_L-004-2

Organization1:

Commenter1:Steve Wilkins

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.3

Comment Excerpt Text:

Kentucky has already demonstrated that it cannot be entrusted to oversee the handling of coal 

ash. Your own agency has been critical of the Kentucky Department for Environmental 

Protection and its Division of Water. Kentucky has been very protective of any potential threat to 

the coal industry and that protection follows coal throughout its life cycle. Coal - the industry - is 

coddled while miners, mountains, waterways, communities, whole regions are sacrificed in 

pursuit of profits. Without federal oversight I fear that Kentucky will do for coal ash what it has 

done with 402 mining permits, favoring the coal life cycle over the environment it is supposed to 

protect. Do not allow Kentucky primacy in the oversight of coal ash.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-11557_L-005-1

Organization1:E.ON U.S. LLC

Commenter1:Michael Winkler

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In Kentucky, we have had regulations governing CCR landfills and beneficial reuse since 1992 

and impoundment safety regulations for an even longer period. LG&E and KU have CCR 

management protocols in place that ensure regulatory compliance and protection of public health 

and the environment. The Kentucky regulatory program works very well. There has never been a 

significant spill from any LG&E or KU CCR facility or any other CCR facility in Kentucky. No 

LG&E or KU CCR facility has ever posed a problem for local water supplies.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 
231

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-11585_L-124-1

Organization1:Cumberland Chapter of Sierra Club

Commenter1:Hank Graddy and Betsy Bennett

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Situation in Kentucky: Slow Motion Spills: 

Residents of Kentucky could suffer the same fate as the families of Kingston. EPA has identified 

six CCW ponds in the Commonwealth that would create a high hazard to human life if they 

failed - impoundments in Harrodsburg, Ghent and Louisville. But catastrophic failure is not the 

only problem because leaking ponds and landfills across the state cause contamination of 

groundwater and waterways. 

Earlier this year, the Sierra Club, Kentucky Waterways Alliance and Global Environmental, LLC 

published a report of coal combustion waste facilities in Kentucky titled,. Slow Motion Spills.: 

Coal combustion Waste and Water in Kentucky. Craig Segal and Mark Quarles, P.G. were the 

principal authors. The report can be found at: 

- http://kentucky.sierraclub.org/resources/Environmental Research/Coal Combustion Waste and 

Water In KY 042110.pdf 

According to "Slow Motion Spills", "Every site in Kentucky for which groundwater data was 

available appears to be leaking". 

Kentucky has 44 coal ash ponds, second most in the nation (and many CCW landfills and 

dumpsites), which are scarcely regulated by the state environmental agency. Of this number, 

monitoring information exists for only eight sites and not all CCW pollutants are monitored. 
232

Based on actual groundwater data from these eight sites, all are contaminated: Cane Run Station 

in Louisville, East Bend Station near Rabbit Hash, R.D. Green Station near Robards, Paradise 

Station near Drakesboro, Trimble County Station just upstream from Louisville, Shawnee 

Station near Paducah, Spurlock Station near Maysville, and D.B. Wilson Station near 

Centertown. 

"Each of these plants is, at a minimum, a potential damage case. Because Kentucky does not 

have monitoring data tracking how far pollutants have migrated, and sometimes did not have 

data for pollutants covered by primary MCLs, it's difficult to determine whether the plants are 

proven damage cases. Further, because these sites often have massive waste complexes, covering 

acres and containing both ponds and landfills, and companies often did not submit detailed 

groundwater diagrams or surface maps, it is sometimes hard to tell which component of the 

waste facility is causing pollution. Nonetheless, the available data do point to onsite CCW 

contamination and the degree of contamination strongly suggests that pollutants are making their 

way off site." Report, page 4. 

The authors of the report have concluded that the state's regulatory program is not properly 

addressing the CCW threat and, in fact, it is getting weaker. As evidence of contamination has 

grown, the state agency has reduced its monitoring requirements, failed to commence 

enforcement actions, and continued to permit new ponds and landfills with inadequate controls. 

Specifically, the report states- and we agree: 

"Is the past prologue for Kentucky? Kentucky has 44 ash ponds, the second most in the nation 

after Indiana, [1] and dozens of coal combustion waste landfills and dumpsites and it barely 

regulates these sites. The Sierra Club and Kentucky Waterways Alliance, working with Global 

Environmental, LLC, launched an investigation into the commonwealth's own records to find out 

what coal combustion waste is doing to Kentucky's water. We found grim news. Although 

records are spotty, every one of the sites for which data were available has groundwater 

contamination consistent with coal combustion waste and, in many instances, this contamination 

is getting worse." 

Based upon our review of these sites, we drew three primary conclusions: 

1. Existing data point to groundwater contamination caused by coal combustion waste beneath 

every plant we studied. For many sites, contamination is intensifying as CCW continues to build 

up in ponds and landfills. 

2. Kentucky's regulatory program is not properly addressing this •threat; instead, it's getting 

weaker. Even as evidence of contamination mounted in state files, Kentucky reduced monitoring 

requirements, failed to commence enforcement action, and continued to permit new ponds and 

landfills without proper controls. 

3. Kentucky is not comprehensively tracking where CCW contamination is going, putting offsite drinking water and communities at risk and allowing CCW discharges to enter our rivers and 
233

streams. Because heavy metals found in CCW waste are toxic in extremely low concentrations, 

and many of these metals accumulate over time, the combination of information gaps and leaky 

CCW sites is very dangerous. 

This report provided documentation of current water quality contamination, including: 

- Total dissolved solids (TDS), chlorides, iron, and/or sulfate parameter concentrations indicate 

groundwater contamination at every site. TDS, chlorides, iron, and sulfates are known to be good 

indicators of coal combustion wastes in groundwater and surface water. 

- Every site that tested for heavy metals and reported the data to the Division of Waste 

Management had metal concentrations that exceeded state and EPA drinking water standards 

(e.g. Duke Energy East Bend; EKPC Spurlock; TVA Shawnee; Big Rivers D.B. Wilson; Big 

Rivers R.D. Green). In some cases, metals contamination is more than a hundred times over 

drinking water standards. 

- CCW ponds are clearly leaking into the groundwater beneath them, as every pond for which 

data were available was associated with contamination (e.g. LG&E Trimble Station; Duke 

Energy East Bend). 

- Groundwater contamination problems are becoming more acute with time at many sites, 

presumably due to long-term leakage (e.g., TVA Paradise, TVA Shawnee, Big Rivers D.B. 

Wilson). 

The report documented the failure of the Kentucky State Government agencies to address these 

problems under the heading of failed oversight - the specific area that EPA has identified as of 

particular concern: 

- Ash ponds are not monitored statewide even though data clearly indicate leakage resulting in 

contamination of groundwater (e.g. LG&E Trimble Station; Duke Energy East Bend). Ash ponds 

are extensive in acreage (up to %-mile long) and are located adjacent to major rivers and small 

tributary streams (e.g. EKPC Spurlock Station; LG&E Trimble Station). 

- Groundwater monitoring programs dating to the 1980s and mid-1990s were more stringent 

because metals testing was required. The Division of Waste Management discontinued metals 

testing in 1997 I 1998, even though contamination above regulatory standards existed dating to 

the 1980s (e.g. Duke Energy East Bend, Big Rivers D.B. Wilson and R.D. Green Plants). 

- No surface water, fish and aquatic life, or sediment monitoring is required even where 

contaminated groundwater is expected to discharge to a receiving stream (e.g. LG&E Trimble 

Station; LG&E Cane Run). 

- Statistical analyses of groundwater data are not always required and even when required, are 

not always performed by the owner (e.g. LG&E Trimble Plant; EKPC Spurlock). 

Finally, the report documented that the pollution problems are continuing. 
234

- Unlined disposal sites that the Division of Waste Management continues to approve are 

typically located adjacent to receiving streams where shallow groundwater is expected. 

- Many ash ponds are not lined and expansions of unlined ponds continue – even though 

groundwater data at expansion sites indicate contamination of groundwater (e.g. LG&E 

Trimble). 

- Recent unlined, horizontal expansions of permit-by-rule landfills continue even though there is 

clear evidence of leakage resulting in groundwater contamination, and/or the "horizontal 

expansions" are not contiguous on power plant properties (e.g., TVA Shawnee; Big Rivers D.B. 

Wilson Plant; LG&E Cane Run Station).

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Finally, the commenter is referred to the damage cases discussion in Unit XI of the preamble as 

well as the supporting documentation that can be found in the RCRA docket supporting this 

rule.

Comment Number: EPA-HQ-RCRA-2009-0640-11585_L-124-3

Organization1:Cumberland Chapter of Sierra Club

Commenter1:Hank Graddy and Betsy Bennett

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Additional Detail On the Kentucky Situation 
235

We are providing additional details that support the conclusion that the state "program" within 

the Commonwealth of Kentucky is woefully inadequate to do the job of protecting the 

environment from the risks of coal combustion waste. These additional details are consistent 

with the conclusions of the above report, and require that EPA recognize that the option of 

continuing business as usual with the subtitle D alternative is an imprudent and irresponsible 

option - analogous to the failure to learn the lessons of the Exxon Valdez oil spill and the logical 

reality of such failure as we experienced this year in the Gulf of Mexico. 

Our additional detail will focus on the coal combustion waste facilities at the Trimble County 

Generating Station, subject to the KPDES Permit No. KY0041917 

We have attached our November 5, 2009 comments to the Kentucky Division of Water when this 

permit was up for renewal last year. As indicated, our comments were submitted with additional 

comments from the Han. Craig Segall and Mark Quarles, P.G., principal authors of Slow Motion 

Spills, discussed above. 

We raised numerous concerns about the adequacy of that KPDES permit at a time when 

LG&E/KU had already filed applications to expand the capacity of the coal waste handling 

facilities at this location. We complained that such expansion was an increased loading from a 

point source, triggering the CWA antidegradation requirements, and that the permit failed to 

adequately protect the environment and violated the Clean Water Act. 

We have also attached our December 1, 2009 motion for the Kentucky Waterways Alliance to 

intervene in the proceedings before the Kentucky Public Service Commission where LG&E/KU 

sought certificates of public convenience and need ("CPCN") to expand a number of coal; 

combustion waste facilities - including the expansion of the coal ash lagoon at Trimble. 

LG&E/KU sought to impose the cost of these facilities on the ratepayers as an "environmental 

surcharge." 

The application to intervene was denied. The PSC refused to consider the environmental risks 

and consequences of these proposals - deferring to the Energy and Environment Cabinet. 

We have attached as Exhibit #3 the Division of Water April 1, 2010 Response to comments. 

These responses deserve careful scrutiny because they establish that the current state programs to 

regulate coal combustion waste are clearly inadequate. 

Comment 3: In their respective comment letters, the Sierra Club and Globally Green each 

questioned the lack of Groundwater monitoring for the BAP in the draft permit! 

Response 3: Prevention of groundwater contamination is covered in a Groundwater Protection 

Plan and is not within the scope of the KPDES permitting program, Also, the BAP is not 

currently permitted to discharge to the Ohio River or any other receiving stream. A discharge 

from the BAP would constitute non-compliance with the conditions of the permit. 

Comment 4: The Sierra Club stated that the KPDES permit should be modified to consider the 

risk of pond failure. 
236

Response 4: The KPDES program does not have the authority to limit potential discharges due to 

failure. Management and maintenance of the facility and treatment units is the responsibility of 

the permittee. 

Comment 5: KWA requested a copy of the Emergency Management Plan for the permittee's 

impoundments. 

Response 5: Part IV of the permit contains all requirements related to the mandatory Best 

Management Practices (BMP) Plan. 

Comment 12: Concerned was expressed by multiple individuals that the KPDES program to 

specify design or construction requirements for the BAP of Gypsum Storage Basin. 

Response 12: It is not within the purview of the KPDES program to specify design or 

construction requirements for the BAP of Gypsum Storage Basin. 

Comment 21:The Disposal method for the coal combustion wastes was objected to by Globally 

Green. 

Response 21: It is not within the purview of the KPDES permitting program to regulate the 

disposal method of wastes or the expansion of the BAP. 

We have also attached Exhibit #4 which provides more detail about the deficiencies of the 

Kentucky regulatory program. Exhibit #4 is the petition that Sierra Club filed to challenge the 

Trimble KPDES permit It provides a succinct and clear condemnation of the inadequate 

regulatory performance of the Kentucky Energy and Environment Cabinet 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-11620_K-034-1

Organization1:

Commenter1:William R. Wilson

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.2

Comment Excerpt Text:

The State of Tennessee has no effective regulations in place to protect our communities from the 

danger of Coal Ash. The evidence of this can be seen in the Kingston Coal Ash Spill.

SACE has released a report documenting the fact that Tennessee has no laws designed 

specifically to address the dangers of coal ash.

Because of this lack of state regulation, Subtitle D is not an acceptable option.
237

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-11624_K-038-1

Organization1:Progress Energy, Inc.

Commenter1:Rob Reynolds

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

Progress Energy supports the development of federal regulations for CCRs under ("RCRA") 

Subtitle D "Prime". The development of rules under this approach will establish a federal 

standard for all CCR facilities to meet. Many states already have effective solid waste statutes 

and regulatory programs that would provide an additional layer of regulatory oversight for 

management, reuse, and disposal of CCRs.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 
238

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-11724_K-148-1

Organization1:

Commenter1:Linda Smithyman

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 6.1.1

Comment Excerpt Text:

In 2000, the EPA deemed coal ash a nonhazardous material, and thus it did not fall under federal 

inspections. Inspections are left up to state regulators. Since 2000, improved pollution controls 

keep more and more toxins from leaving smokestack, thus increasing the amount of toxins in the 

coal ash, classifying the coal ash as hazardous would almost certainly affect how the waste is 

recycled.

But environmentalists have concerns. Tests have shown that coal ash contains dangerous toxins 

such as arsenic, lead, chromium, manganese and barium, which have been linked to serious 

health conditions such as cancer, liver damage and neurological complications.

The results of an EPA study data collection, released sept 2009, indicate that the problem of coal 

ash is widespread. Ash ponds are located in 35 states and the majority of dump sites are over 

three decades old.

There are many toxins in coal ash known to be hazardous to human health and to cause cancer at 

certain exposure levels. According to the EPA report, many of the ash ponds in KY were not 

designed or constructed by engineers, bringing into question whether or not the ash is properly 

contained at these sites. Several of Kentucky Utilities’ and LG&E’s ponds fall into this category.

These ash disposal sites also leak their toxic cargo into groundwater, or discharge it directly into 

rivers, creeks and lakes as runoff or through permitted outfalls. Until the EPA takes action, there 

are no federal rules setting standards for these disposal of ash, or limiting the discharge of toxic 

ash leachate into our waterways.”

Someone - I believe what they said - told me that folks driving into the facility TOLD TVA that 

there was a leak time and time again. Yet, it seemed that nothing was done about it ... What 

happened? How many homes were destroyed? How much land was contaminated? How many 

people had to get drinking water for their daily needs? If the Kingston spill had actually 

happened upriver from Knoxville and affected OUR daily water supply there would have been 

an even greater uproar about the cleanup and the future of coal ash plants.
239

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2009-0640-11785_P-146-1

Organization1:

Commenter1:Lisa Graves-Marcucci

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 6.1.1

Comment Excerpt Text:

Busloads of people living near coal ash impoundments in Pennsylvania, Ohio and West Virginia 

are making their way to this hearing. They will be sharing what it's really like- not the mythical 

versions told by companies and the PA DEP.

Their personal stories represent something far more valuable than money - human health.

Industry worries about a stigma on their product- these people worry about their very lives.

The EPA risk assessment details extremely high cancer risks to communities living near unlined 

coal ash impoundments - particularly those on groundwater, like Greene Township, PA home to 

Little Blue Run ash impoundment.

There is nothing little about Little Blue- it is one of the nation's largest unlined impoundments. It 

stretches from PA into Chester, WV and faces East Liverpool, OH.

PA DEP files reveal contamination problems existed at Little Blue, for over a decade; however, 

PA DEP has not issued any fines, corrective actions, or remediation directives. Even with 

contamination problems, PA DEP authorized an expansion in 2005 under a Demonstration or 

"experimental" status, offering even less protection to communities.
240

Currently, First Energy is seeking more land for ash disposal. Residents have been asked to sign 

company waivers, removing the state-required buffer, protection setbacks to private wells and 

residences. (See exhibit A)

PA DEP and First Energy officials deny arsenic problems at Little Blue; however, documents 

show elevated arsenic in ten monitoring wells. Shockingly, the public was never told, until we 

obtained company documents from state files. (See exhibit B)

22 private wells have been contaminated with a variety of pollutants: some with arsenic. PA DEP 

is doing nothing to contain the toxic plume, protect drinking water or the humans consuming it. 

(See exhibit C)

We believe cancer rates among folks living near Little Blue are reflected by cancer rates 

modeled in the US EPA's risk assessment.

Little Blue represents a real-world example of why federal rules are needed. The PA DEP has 

become an advocate for industry's toxic waste- they are not holding First Energy or other 

companies accountable for problems at ash impoundments.

Industry and the PA DEP contend there is no evidence of ground or surface water contamination 

from coal ash. PA DEP public files prove otherwise. Industry and PA DEP are deliberately 

ignoring facts and misleading you and the public: coal ash has contaminated water sources. 

Something needs to be done to protect people who are literally in harm's way.

Thank you.

Lisa Graves Marcucci

[See original attachment for letter from Pennsylvania Department of Environmental Protection to 

FirstEnergy Generation Corporation dated February 16, 2010; letter from FirstEnergy Generation 

Corporation to Pennsylvania Department of Environmental Protection dated February 24, 2010; 

waiver and consent for placement of residual waste and operation of access roads; In Harm’s 

Way report]

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 
241

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0183-1

Organization1:Colorado Department of Public Health and Environment

Commenter1:Joe Schieffelin

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Colorado has an intense interest in EPA's upcoming decision on how coal combustion residuals 

(CCRs) will be regulated. Because it is such an important decision with huge programmatic, 

cost, and logistical implications, it is crucial that EPA have accurate information at their 

disposal. Unfortunately, some of the information submitted to EPA is not accurate. Specifically, 

we would like to respond to an incredibly inaccurate portrayal of Colorado's solid waste 

regulatory program presented by Earth justice, and others, in comments submitted to EPA on 

November 10, 2010 (Docket ID No. EPA-HQ-RCRA-2011-0392-0119). 

In their comments, Earthjustice, et al, (EJ comments) purport to have evaluated 37 state solid 

waste programs and whether these state programs "have imposed requirements to address: I) 

ground water monitoring, 2) unit liners, 3) leachate collection systems, 4) financial assurance, 5) 

post-closure monitoring and maintenance, and 6) extent of permitting requirements." Colorado 

was one of the 37 states evaluated. 

As you will see from the following detailed responses, Earth justice, et al, has completely and 

irresponsibly mischaracterized our solid waste regulatory program. Of the 26 specific regulatory 

analyses performed by Earthjustice, et al, only 2 were completely correct with respect to our 

program (both giving Colorado credit for not allowing CCR landfills and impoundments to be 

built into ground water) and 2 others were technically correct, but implied inadequacies when 

none are present. The remaining 22 analyses accused Colorado of programmatic shortcomings, 

but are completely wrong. This degree of incorrect information is either the result of an 

incompetent evaluation or fabrication of results that confirm a pre-existing agenda. Either way, 

the follow-on concerns that Earthjustice, et al, present in their comments, including the 

overestimation of state ability to control CCRs in the environment, and the failure of states to 

adequately regulate CCRs, are unfounded. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 
242

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0183-24

Organization1:Colorado Department of Public Health and Environment

Commenter1:Joe Schieffelin

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

These same responses we provide above can also be used to debunk claims about Colorado's 

regulatory program that are presented by Earth justice and others in the report, "State of Failure: 

How States Fail to Protect Our Health and Drinking Water from Toxic Coal Ash." Though not as 

lengthy, the State of Failure report is equally as biased and inaccurate in its portrayal of state 

CCR regulatory programs as the EJ comments. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.
243

Comment Number: EPA-HQ-RCRA-2011-0392-0183-25

Organization1:Colorado Department of Public Health and Environment

Commenter1:Joe Schieffelin

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In conclusion, it is clear that Earthjustice, et al, has grossly mischaracterized our Subtitle D 

regulatory control of CCRs. In fact, Colorado has and implements extensive Subtitle D controls 

over CCR landfills and surface impoundments. In our conversations with other states, it is also 

clear that the EJ comments substantially mischaracterize their programs as well. We conclude, 

therefore, that the accusation of inadequate and/or poorly implemented state Subtitle D 

regulatory programs is baseless and is not a legitimate reason for EPA to regulate CCRs as 

hazardous waste. We hope that EPA has already come to that same conclusion. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0191-3

Organization1:Michigan Department of Environmental Quality (MDEQ)

Commenter1:Liane Shekter Smith

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1.3 7.1.2.5

Comment Excerpt Text:
244

U.S. EPA is noticing the comments on the 2010 proposed rule, submitted by Earthjustice, 

Environmental Integrity project, Sierra Club, Natural Resources Defense Council, Southern 

Alliance for Clean Energy, Southern Environmental Law Center, and Physicians for Social 

Responsibility, addressing gaps in state government regulatory programs applicable to the 

management of CCRs. 

The MDEQ disagrees with the report's assessment of Michigan's regulatory program as it applies 

to the management of CCRs. The MDEQ takes issue with the contention in the report that 

individual states take no action with regard to CCR disposal sites, when, in fact, the State of 

Michigan has required the closure of numerous unlined CCR disposal sites, and has required 

corrective action to address groundwater and/or surface water impacts. Michigan identified eight 

proven damage cases in the comments submitted to the docket on November 20, 2010. Michigan 

also objects to the characterization of the regulatory program in the State, as described in the 

above referenced document.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0191-7

Organization1:Michigan Department of Environmental Quality (MDEQ)

Commenter1:Liane Shekter Smith

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

A complete description of Michigan's CCR Program is available in our November 2010 

comments to Docket ID No. EPA-HQ-RCRA 2009-0640. 
245

Michigan believes its current CCR regulations are adequate and protective of the environment. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2011-0392-0196-1

Organization1:Alaska Department of Environmental Conservation (ADEC)

Commenter1:Kristin Ryan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.4.2

Comment Excerpt Text:

In accordance with section VII, paragraph 1 of the NODA, the ADEC is providing comments on 

a report regarding purported gaps in state regulatory programs for CCRs that was submitted to 

the EPA by Earthjustice, Environmental Integrity Project, Sierra Club, Natural Resources 

Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, and 

Physicians for Social Responsibility (document no. EPA-HQ-RCRA-2009-0640-6315). 

The ADEC has two primary concerns with the subject report. Our first concern is that in Table 

28 (page 48) Alaska is erroneously listed among the states that are NOT expected to implement 

new Subtitle D standards for CCR facilities. We find this interesting because Alaska intends to 

revise its approved Subtitle D program as needed to comply with any revisions to 40 CFR 258. 

(Please note that Alaska was the first state in Region 10 to revise its Subtitle D program to adopt 

the Research, Development, and Design regulations of 40 CFR 258.4.) We understand that Table 

28 is pulled from another source; but verifying Alaska's intent required nothing more than a 

telephone call to the ADEC. This step should have been considered necessary because Alaska is 

not included in the analysis of state programs represented by Tables 1 through 27 in the report, 

nor is Alaska mentioned in the purported source document on which Table 28 is based. The 

ADEC is very concerned over the fact that the authors are willing to report as fact something that 

they have neither researched nor attempted to verify. Such action raises significant doubts about 

the accuracy and validity of the entire report. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 
246

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0196-2

Organization1:Alaska Department of Environmental Conservation (ADEC)

Commenter1:Kristin Ryan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The second concern the ADEC has with this report is the number of significant issues that the 

report ignores. In making their general claim that state regulatory programs are "grossly 

deficient" (page 3), the authors ignore the fact that the EPA has never established a minimum 

national standard for the management of CCRs by which adequacy can be measured (see 75 FR 

35137). The authors also ignore the fact that in the absence of a national standard, the various 

states have developed regulatory programs that are applicable to the specific conditions and 

situations within each state; programs in which decisions are based on facts and available data. 

To judge such regulatory programs as "woefully inadequate" (page 37) suggests that the 

preferred alternative is a program that ignores facts and available data and simply renders 

arbitrary decisions that are divorced from the reality of the situation. 

It is somewhat ironic, then, that the authors' stated reason for making the proposed Subtitle C 

criteria the minimum national standard is because it "clearly is the only option consistent with 

the best available science" (page 2). In making that claim, the authors ignore the fact that the 

proposed Subtitle D option includes the very same liner and leachate collection requirements as 

the Subtitle C option (see 75 FR 35202). By ignoring these and other facts and declaring that 

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

health and the environment" (page 7), the authors reveal their true motivation is more the desire 

to regulate coal ash as a hazardous waste than it is the desire to establish an effective and 

achievable national minimum standard for managing CCRs. Taken together, these issues provide 

ample reason for questioning the accuracy of the reporting and the legitimacy of the data 

presented. In light of the problems noted, it is the opinion of the ADEC that the EPA should not 

use the information in the subject report in developing the final rule for management of CCRs.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 
247

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0197-2

Organization1:Oklahoma Department of Environmental Quality (DEQ)

Commenter1:Scott Thompson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

A third report open for comment by this NODA, submitted by EarthJustice, on November 19, 

2010 (Docket ID EPA-HQ-RCRA-2009-0640-6315, hereafter referred to as "the Report"), 

concludes that only federal regulation of CCR under Subtitle C of RCRA will be protective of 

human health and the environment because of alleged inadequacies in state CCR management 

programs [Footnote 1: It appears much of the information used by the authors to identify alleged 

inadequacies in state CCR management programs is derived from Appendix E of EPA's 2010 

Regulatory Impact Analysis (see Docket ID EPA-HQ-RCRA-2009-0640-0003). According to 

the Regulatory Impact Analysis, DEQ's 1994 regulations were used by EPA to assess the status 

of CCR regulation in Oklahoma. Our regulations have been modified several times over the 

following years, with the current regulations for CCR landfills becoming effective in 2003.]. The 

DEQ respectfully disagrees with this assertion as our regulations for these sites are, in most 

areas, nearly identical to the Subtitle C and Subtitle D options presented in EPA's proposed 

rulemaking for CCR management [Footnote 2: The proposed rule was published June 21, 2010 

at 75 FR 35128-35264] and in some cases are more strict. As such, DEQ is providing comments 

only in regards to the alleged deficiencies in Oklahoma's regulations for CCR landfills as 

identified in Tables 1 through 27 and Table 29 of the Report.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to

incorporate the CCR rules into state solid waste management plans. 
248

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0197-4

Organization1:Oklahoma Department of Environmental Quality (DEQ)

Commenter1:Scott Thompson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Table 1. Overview of Mandatory State Requirements for CCR Disposal [from Docket ID EPAHQ-RCRA-2009-0640-6315, hereafter referred to as "the Report"]

The table notes that no state regulatory programs have retroactive liner, leachate collection, or 

groundwater separation requirements, suggesting these are deficiencies in state regulatory 

programs for CCR landfills. The DEQ believes this "finding," presented without proper context, 

is misleading. Until the proposed CCR rule, EPA had never, to our knowledge, proposed a rule 

that retroactively required composite liners, leachate collection systems, or groundwater 

separation for any type of land disposal unit. EPA's proposed rule only requires existing CCR 

surface impoundments to be retroactively fit with liners and leachate collection systems, and did 

not include any retroactive requirements for separation from groundwater. There are no 

retroactive requirements in the proposed rule for CCR landfills.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2011-0392-0197-7

Organization1:Oklahoma Department of Environmental Quality (DEQ)

Commenter1:Scott Thompson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Finally, as stated in our opening paragraph, DEQ is providing comments only in regards to the 

issues listed above that DEQ does not believe correctly portrays Oklahoma's laws and 

regulations. DEQ does not, expressly or implicitly, make any additional comments regarding the 
249

veracity of the Report. As always, the DEQ appreciates the opportunity to more accurately state 

the CCR regulatory climate in Oklahoma.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0201-2

Organization1:Commonwealth of Pennsylvania, Department of Environmental Protection 

(DEP)

Commenter1:Michael Krancer

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 11.2.5

Comment Excerpt Text:

We know that the level of public awareness on coal ash rose with the Tennessee Valley 

Authority coal ash impoundment failure in 2008. This might be the reason for EPA’s “rush” 

toward making all coal ash everywhere “hazardous waste” and brought under EPA’s sole 

governance. However, Pennsylvania reacted quickly and decisively to the event. DEP 

strengthened the applicable sections of our residual waste regulations in new Chapter 290 to 

provide for additional water quality monitoring, the establishment of chemical (leachate) and 

physical standards and a procedure for qualifying ash for reclamation use, which we had done 

previously by policy.

Pennsylvania’s experience is a testament to how well and how responsively the individual states 

can and do regulate in this area. Indeed, as Pennsylvania’s experience with Chapter 290 

demonstrates, the states are better and more agile at doing so than is the federal government, 

which is one of the main underpinnings of HR 2273 recently passed by the House of 

Representatives. HR2273 would provide general management guidelines under which states 

would able to implement environmentally protective programs that meet individual state needs, a 
250

much better approach than designating a non-hazardous material a hazardous waste. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0201-5

Organization1:Commonwealth of Pennsylvania, Department of Environmental Protection 

(DEP)

Commenter1:Michael Krancer

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 8.9

Comment Excerpt Text:

The NODA also listed the following document for comment:

· Comments of EarthJustice, Environmental Integrity Project, Sierra Club, Natural Resources 

Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, 

Physicians for Social Responsibility, November 19, 2010.

While the time allotted for comments to the NODA (30 days) did not allow for detailed review 

of all the identified state programs in those comments, DEP notes that the report also contains 

many of the same allegations as the previous two reports identified in this letter. Please be 

advised that our enclosed rebuttals also serve as commentary on those comments contained in the 

November 19, 2010, comments submitted by EarthJustice, et al.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 
251

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0211-30

Organization1:Utility Solid Waste Activities Group (USWAG), et al.

Commenter1:James Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.6.4 7.3.1 10.4.3 8.9 6.8.9

Comment Excerpt Text:

USWAG’s primary comments on the NODA are as follows:

- The new CCR facility and waste management data illustrate that CCR impoundments are 

operated safely and that not a single CCR impoundment, out of the hundreds inspected by EPA, 

poses an immediate safety threat.

- The noticed chemical constituent data underscores that CCRs rarely, if ever, exhibit a waste 

characteristic and that no category of CCRs meets EPA’s hazardous waste listing criteria.

- Contrary to comments in the docket from groups with a narrow agenda of pervasive federal 

regulation, comments from state regulators illustrate that the states have successfully overseen 

CCR management programs for decades and have the expertise and resources to implement an 

effective non-hazardous CCR program. In contrast, the imposition of a hazardous CCR 

regulatory scheme would create practical problems at the state level that would frustrate the 

intent of this rulemaking.

- Comments from end users of CCRs and CCR products demonstrate that designating CCRs 

destined for disposal as “special” hazardous wastes will saddle all CCRs with a stigma that will 

be adversely impact the beneficial use rates of those materials.

- A review of the alleged damage case data in the NODA docket compels the conclusion that that 
252

none of the alleged damage cases warrant reversal of EPA’s Bevill determinations or regulation 

of CCRs under Subtitle C.

- EPA’s risk assessment contains serious flaws in its inputs and modeling methodology which 

are not addressed by the information in the NODA. Some of the information in the NODA could 

contribute to modest improvements in the risk assessment, but only if used appropriately.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2011-0392-0211-4

Organization1:Utility Solid Waste Activities Group (USWAG), et al.

Commenter1:James Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

III. THE NEW ANALYSES OF STATE PROGRAMS COMPEL THE PROMULGATION OF 

NON-HAZARDOUS CCR CONTROLS

In the section of the NODA on new analyses of state programs, EPA primarily includes 

comments from three sources: (1) comments submitted by Earthjustice et al. which purport to 

address gaps in state regulatory programs (EPA-HQ-RCRA-2011-0392-0119) (“Earthjustice 

comments”); (2) comments by state representative organizations submitted by the Association of 

State and Territorial Solid Waste Management Officials (EPA-HQ-RCRA-2011-0392-0120) 

(“ASTSWMO comments”) and the Environmental Council of the States (“ECOS”) (EPA-HQRCRA-2011-0392-0118); and (3) comments submitted by various state agencies. Earthjustice’s 

comments on the CCR proposal that are included in the NODA take aim at what it claims are 

gaps and deficiencies in state regulatory programs for CCRs and how these gaps compel the 

promulgation of hazardous waste regulation of CCRs. Notably, these comments take only a 

superficial look at state regulatory programs and incorrectly assume both (i) that states must 

specifically adopt non-hazardous regulatory controls for the controls to be effective, and (ii) that 

the states will not promulgate and/or enforce such controls. As discussed below, these 

assumptions are unfounded. The state agency and state representative organizations’ comments, 

on the other hand, underscore the practical problems at the state level of imposing hazardous 

waste controls for CCRs, especially when these controls will differ based on the downstream use 

of the materials. When taken as a whole, the comments included in this section of the NODA 
253

demonstrate that hazardous waste regulation will not increase the protectiveness of regulatory 

controls at the state level, and therefore EPA should adopt the more cost-effective and workable 

non-hazardous regulatory option for CCRs.

A. Earthjustice Claims that Hazardous Waste Controls Are Needed to Correct State CCR 

Regulatory Deficiencies are Unfounded

Earthjustice’s comments on the CCR proposal assert many reasons why it believes that 

hazardous waste regulation of CCRs is necessary. The comments include a summary of a survey 

of various state regulatory requirements currently applicable to CCRs and compare these existing 

requirements to an ideal set of regulatory components as envisaged by Earthjustice. Not 

surprisingly, given Earthjustice’s overarching goal of the promulgation of a federal hazardous 

waste regulatory scheme for CCRs, it purports to show that there is a lack of adequate nonhazardous waste regulatory controls across the surveyed states. Earthjustice contends that these 

differences from its ideal set of regulatory controls demonstrate that the current state 

requirements must be preempted by federal hazardous waste regulations. Earthjustice’s straw 

man analysis of state regulatory programs, however, fails in several primary respects.

Earthjustice’s underlying assumption is that the only way a CCR regulatory program could be 

sufficiently protective of human health and the environment is if it mandated all of Earthjustice’s

ideal set of regulatory controls. Therefore, any state with a CCR management program that 

deviates in any respect from the particularized suite of ideal controls posited by Earthjustice is 

characterized as ineffective. For example, to meet Earthjustice’s groundwater monitoring 

standard, a particular state must have nonwaivable groundwater monitoring requirements for all 

CCRs regardless of their toxicity, including requirements that at least four wells be sampled on at 

least a quarterly basis. Any state that does not meet each and every component of this standard 

will be characterized by Earthjustice as not having effective groundwater monitoring 

requirements. Earthjustice comments at 25-28. This method for assessing the effectiveness of 

any particular regulatory standard through comparison with Earthjustice’s notion of a perfect 

regulatory standard completely ignores the real world expertise of state regulators in designing 

and applying non-hazardous waste rules to CCRs. Most importantly from a rulemaking 

perspective, it incorporates absolutely no factual information about whether and how any 

particular state program is failing to protect human health and the environment.

Earthjustice also completely dismisses all state requirements that can be waived, are based on the 

observed toxicity of particular types of CCRs, or are left to the discretion of state regulators. See 

e.g., Earthjustice comments at 30 (discussing leachate collection systems). Based on pure 

conjecture, Earthjustice makes the sweeping generalization that “the discretion given to state 

regulators and the variances that they subsequently grant may significantly compromise the 

safety of a waste disposal unit.” Id. at 23. Earthjustice then provides a few examples of where 

states have provided waivers and summarily concludes that “when state law gives regulators 

discretion to waive basic safeguards such as liners and cover, the states use that discretion 

liberally.” Id. Earthjustice claims that states with even the ability to waive these requirements

(even if waivers are not actually granted) have insufficient regulatory controls. The remarkable 

deficiency in these claims is that Earthjustice does not point to a single instance when a state’s 

waiver of a particular requirement for a CCR management unit has resulted in actual harm to 
254

human health or the environment. The assumption that state regulators with expertise and a duty 

to protect the human health and environment in their state will undermine the protectiveness of 

state programs applicable to CCRs ignores the real world functioning of state programs and 

undermines the credibility of Earthjustice’s claims.

Earthjustice claims that state programs with waivers or discretionary decisionmaking are 

ineffective but completely fails to provide any factual background or real world evidence as to 

where a waiver has been granted without sufficient technical review or has actually resulted in a 

failure to protect human health or the environment. The mere fact that waiver authority exists 

does not mean this authority is abused or that these programs are deficient. Earthjustice presumes 

that the existence of state waiver authority necessarily means that waivers are insensibly granted 

and that granting these waivers undermines the protectiveness of regulatory controls. Earthjustice 

makes the assumption that state regulators are incapable of administering non-hazardous 

regulatory programs and cannot be given any discretionary authority.

These same assumptions are also made for any state regulatory program requirements that differ 

in any respect from what Earthjustice would require. As previously mentioned, Earthjustice cites 

to state groundwater monitoring programs for CCR landfills and argues that the controls are 

insufficient because the state programs call for semi-annual sampling. Earthjustice categorically 

labels such groundwater monitoring progras as “insufficiently protective” because, in 

Earthjustice’s view, any groundwater monitoring program must require quarterly sampling. 

Earthjustice comments at 26-27. Once again, Earthjustice fails to point to any alleged harm that 

has resulted from groundwater monitoring programs that require semi-annual monitoring and 

fails to investigate whether semi-annual monitoring in the states in question is perfectly 

reasonable given state-specific climatic and geologic factors. Indeed, even under the wellestablished groundwater monitoring program for municipal solid waste landfills under 40 C.F.R. 

Part 258, groundwater monitoring can be waived altogether if certain demonstrations are made. 

See 40 C.F.R. 258.50(b). Put simply, in Earthjustice’s view of the world, no state program can be 

relied upon to effectively regulate CCRs.

Even more fundamental than dismissing all state controls that depart from its ideal, Earthjustice’s 

comments completely ignores the core structure of the nonhazardous regulatory program that 

EPA actually describes in its proposal. Earthjustice dismisses the option of regulating CCRs 

through a non-hazardous waste framework because states will fail to adopt and enforce the basic 

requirements of a Subtitle D rule. Earthjustice comments at 61. These comments completely 

ignore the framework and mechanism that EPA includes in the Subtitle D portion of the CCR 

proposal as well as the history of state adoption of the criteria for solid waste disposal facilities.

As Earthjustice should be aware, the Subtitle D rule would impose self-implementing controls on 

CCR facilities enforceable by the states and citizen groups. No state adoption is necessary under 

the framework that EPA proposes; rather the nonhazardous portion of the CCR proposal would 

be a federal regulation that is directly binding on all CCR disposal units and would be directly 

enforceable by citizens or the states. Enforcement by states and citizens groups would be 

substantially aided by the rule’s requirement for self-reporting of compliance status via a 

facility’s website. [Footnote 9: There is little doubt that the utility electrical generators covered 

by this proposed rule will comply with the regulations if finalized. Cf. Comments of Kentucky 
255

Department of Environmental Protection (EPA-HQ-RCRA-2011-0392-0078) (“Our experience 

under solid waste and special waste rules is that the major utilities generally comply with 

environmental regulations involving ash.”).] As ASTSWMO correctly points out in its 

comments, “[t]hese requirements establish a substantial basis for both citizens and those States 

without equivalent State requirements to successfully enforce under RCRA citizen suit 

authority.” ASTWMO comments at 24. As a result of this self-implementing framework, the 

allegations that Earthjustice makes about current state regulatory practices are completely 

irrelevant in evaluating the effectiveness of the Subtitle D proposal that EPA includes in its CCR 

proposal.

Additionally, the historical evidence of the adoption of Subtitle D regulations by the states 

demonstrates that states can and do adopt non-hazardous waste programs into their state 

requirements. The 40 C.F.R. Part 257 Subtitle D regulations for solid waste disposal facilities 

have been uniformly adopted by the states, and most of the state Part 257 regulations are more 

stringent than what EPA itself issued. The history of state adoption of 40 C.F.R. Part 257 

demonstrates that many States will voluntarily establish compatible state CCR regulations under 

Subtitle D. See ASTSWMO comments at 24. “The high level of involvement by state waste 

programs is good evidence that if national waste management standards for CCRs were 

promulgated, States would adopt those standards just as they have adopted the Part 257 

standards.” ASTWMO comments at 23-24. Earthjustice completely ignores the relevant 

historical evidence in dismissing any possibility of a non-hazardous solid waste regulatory 

framework for CCRs.

Earthjustice’s comments in the NODA are not grounded in the factual realities of state CCR 

regulatory programs; nor do they take account of the practical consequences of instituting a 

federal hazardous waste program for CCRs. Their comments should be afforded little weight by 

EPA as it considers which option to pursue in its final rule

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.
256

Comment Number: EPA-HQ-RCRA-2011-0392-0212-3

Organization1:Consumers Energy Company (Consumers Energy)

Commenter1:Gary Dawson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1

Comment Excerpt Text:

Adequacy of State Regulatory Programs

Consumers Energy believes that the information provided in this NODA on existing state 

regulatory programs for CCR provided by the Environmental Council of States, the Association 

of State and Territorial Solid Waste Management, and 36 state governments in states where coal 

ash is produced clearly demonstrates and supports our previous contention that adequate state 

regulatory programs for CCR management, disposal, and beneficial use currently exist and that 

the imposition of a separate federal program to manage these wastes is not needed. Consumers 

Energy has previously commented on the adequacy of state programs in general and Michigan's 

program that has been in place since 1983 and is based on the Subtitle D regulation of municipal 

solid waste landfills in particular. We have also specifically commented in opposition to both the 

version of the proposed Subtitle D rule that would exclude a state regulatory role and also the 

regulation of CCR under Subtitle C with State assumption of regulatory authority. The former 

ignores a long history of competent state performance under RCRA Subtitle D guidance and 

replaces it with a system that relies on enforcement by citizen suit; the latter provides an 

unreasonable and wholly unnecessary regulatory imposition on state resources through an 

unfunded federal mandate.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.
257

Comment Number: EPA-HQ-RCRA-2011-0392-0215-8

Organization1:Duke Energy Business Services, LLC (Duke Energy)

Commenter1:Richard Meiers

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1

Comment Excerpt Text:

VI. Comments on Adequacy of State Programs

Duke Energy supports ASTSWMO, ECOS, and a majority of the individual states in their 

responses to information in the NODA from environmental groups challenging the adequacy of 

state CCR regulatory programs. There are dozens of comment letters from state environmental 

protection agencies supporting the adequacy of state programs. As outlined by ASTSWMO and 

ECOS, state CCR control programs are working well.

The environmental groups’ comments in the NODA allege that wide-spread deficiencies and 

gaps in state regulatory programs compel EPA to develop a federal hazardous waste regulation 

for CCR, thereby undermining the states’ ability to enforce non-hazardous regulations in a 

manner that is protective of human health and the environment. Duke Energy’s rebuttal to the 

three alleged damage cases for its facilities, along with USWAG’s rebuttal to all of the other 

alleged damage cases, expose the weakness of the environmental groups’ attempt to rely upon 

inflated and unproven damage case numbers to justify their claims that state regulatory programs 

are ineffective and not protective of human health and the environment.

EPA’s concern about the protectiveness of state regulatory programs is unfounded. Historical 

evidence of state level mandates implementing and enforcing industrial non-hazardous waste 

regulations demonstrate they can be effective in administering a Subtitle D non-hazardous 

regulation specifically for CCR. In addition, ASTSWMO’s comments on the Proposed Rule 

make a compelling case that regulating CCR under the Subtitle C option would be 

counterproductive, as it will place an additional burden on limited state resources and likely lead 

to less oversight, thus undermining the effectiveness of a CCR regulatory program.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 
258

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0217-1

Organization1:Nebraska Department of Environmental Quality

Commenter1:David Haldeman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1 4.5

Comment Excerpt Text:

We note that the docket already contains a letter from the Nebraska Department of 

Environmental Quality (NDEQ) that provides comment on EPA's proposed rule published on 

June 21, 2010 (75 FR 35127). 

The NDEQ comments to the 2010 proposed rule contains a detailed description of Nebraska's 

existing CCR permitting and management program that we believe demonstrates CCR landfills 

in Nebraska are well managed under NDEQ's current solid waste regulations. We hope EPA 

gives careful consideration to the NDEQ comments on the 2010 proposed rule and reiterate our 

preference that if EPA promulgates a final rule, the rule reflects a Subtitle D approach similar to 

the requirements for municipal solid waste landfills contained in 40CFR Part 258. We strongly 

believe a Subtitle C approach is unnecessary and would have a substantial negative impact on 

NDEQ's existing CCR regulatory program. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2011-0392-0220-2

Organization1:NRG Energy, Inc. (NRG)

Commenter1:Verne Shortell

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

•State Program Validity – The analysis of state programs and comments from state 

environmental agencies, various state and local government organizations, technical 

organizations such as EEI, EPRI, and ASTM, has proven that state agencies and their associated 

programs are adequate to regulate and enforce CCR disposal and while federal oversight is 

beneficial, federal management of state programs is not warranted. Comments from state 
259

regulators illustrate that the states have successfully overseen CCR management programs and 

have the expertise and resources to implement an effective non-hazardous CCR program. To the 

extent that isolated problems arise, the states have in fact take action to address issues in their 

community

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0222-2

Organization1:Kansas Department of Health and Environment

Commenter1:William Bider

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Our comments specifically address the provisions of the Kansas industrial landfill permitting 

program which was inaccurately characterized in the Earth Justice report entitled: "State of 

Failure: How States Fail to Protect our Health and Drinking Water from toxic Coal Ash. "

The above-mentioned Earth Justice report appears to have been prepared based upon a survey of 

states which did not ask the proper questions to fully or accurately characterize the adequacy of 

applicable laws and regulations related to the administration of state permitting programs. For 

example, while Kansas does not have specific regulations related to coal combustion residue 

landfill permits, we do have general requirements for all landfills that include comprehensive 

engineering and hydrogeological reviews that ensure environmentally sound designs and 

operating plans at CCR and other industrial landfills. It would appear from Earth Justice's 

summary of state programs, that CCR disposal in Kansas is basically unregulated, but this is far 

from the truth. Every CCR landfill in Kansas is thoroughly regulated and monitored to assure 

human health and the environment are adequately protected.
260

We have attached detailed comments that address many specific points raised in the Earth Justice 

report . While our comments relate only to the inaccuracies presented for Kansas, I would like to 

emphasize that I believe our concerns regarding the mischaracterization of state programs 

extends to other states as well . I presently serve on the Board of Director's for the Association of 

State and Territorial Solid Waste Management Officials (ASTSWMO) and board discussions last 

week demonstrated widespread state disagreement with the Earth Justice report.

Kansas strongly recommends that EPA should not utilize the Earth Justice "State of Failure" 

report due to clear errors . It would be very inappropriate to make such an important regulatory 

decision based upon inaccurate information.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0222-3

Organization1:Kansas Department of Health and Environment

Commenter1:William Bider

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Kansas is providing specific comments to point out the errors presented in the following report 

submitted by Earth Justice and Appalachian Mountain Advocates:

"State of Failure: How States Fail to Protect Our Health and Drinking Water from Toxic Coal 

Ash"

General Concerns
261

Based upon erroneous information, Earth Justice repeatedly used inflammatory and overly 

expressive words and sentences in the Introduction, Part 1, Part II, and the Conclusion of the 

"State of Failure" report to exaggerate deficiencies in state programs to support their position that 

the U.S. EPA should regulate coal ash as a Subtitle C waste to protect public health .

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0223-4

Organization1:Ameren Corporation

Commenter1:Paul Pike

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1

Comment Excerpt Text:

State Programs

Environmental groups' comments in the NODA allege that there are gaps and deficiencies in 

state regulatory programs for CCR and that these gaps compel the promulgation of hazardous 

waste regulation of CCR. These comments take only a superficial look at state regulatory 

programs and incorrectly assume that states must specifically adopt non-hazardous regulatory 

controls for the controls to be effective and that the states will not promulgate or enforce such 

controls. Comments from numerous state agencies and state representative organizations on CCR 

regulatory programs at the state level demonstrate that the environmentalist groups' criticisms are 

off the mark and evidence a poor understanding of the practicalities of CCR regulation. State 

comments make clear that a Subtitle D program for CCR can and will be effectively 

administered by the states and that imposing a Subtitle C regulatory structure on the states would 

be counterproductive, as it will overtax limited state resources and likely lead to less effective 
262

oversight.

Our own experience with our two States' has been clear that they have strong effective programs 

that in some ways go beyond the proposed CCR Subtitle D program. Gaps may appear to be 

present because they do not have consolidated regulations for all aspects of CCR management, 

but we believe that they already regulate our facilities in a manner that is protective of human 

health and the environment. In sum, hazardous waste regulation will not increase the 

protectiveness of regulatory controls at the state level, and that a Subtitle D program for CCR 

represents the most cost-effective and workable regulatory option for a federal CCR program.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0227-3

Organization1:Entergy Services, Inc. (Entergy)

Commenter1:Myra Glover

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1

Comment Excerpt Text:

The New Analyses of State Programs Compel the Promulgation of Non-Hazardous CCR 

Controls

In the section of the NODA on new analyses of state programs, EPA primarily includes

comments from three sources: (1) comments submitted by Earthjustice et al. which intend to 

address gaps in state regulatory programs (“Earthjustice comments”) (comments included in 

NODA docket at number EPA-HQRCRA-2011-0392-0119); (2) comments by state 

representative organizations submitted by the Association of State and Territorial Solid Waste 
263

Management Officials (comments included in NODA docket at number EPA-HQ-RCRA-2011-

0392-0120) and the Environmental Council of the States (“ECOS”) (comments included in 

NODA docket at number EPA-HQ-RCRA-2011-0392-0118); and (3) comments submitted by 

various state agencies.

The Earthjustice comments in the NODA allege that there are gaps and deficiencies in state 

regulatory programs for CCR and that these gaps compel the promulgation of hazardous waste 

regulation of CCR. These comments take only a superficial look at state regulatory programs and 

incorrectly assume that states must specifically adopt non-hazardous regulatory controls for the 

controls to be effective and that the states will not promulgate or enforce such controls. 

Comments from numerous state agencies and state representative organizations on CCR 

regulatory programs at the state level demonstrate that the environmentalist groups’ criticisms 

are off the mark and show evidence of a poor understanding of the practicalities of CCR 

regulation. State comments make clear that a Subtitle D program for CCR can and will be 

effectively administered by the states and that imposing a Subtitle C regulatory structure on the 

states would be counterproductive, as it will overtax limited state resources and likely lead to less 

effective oversight. In sum, the comments included in this section of the NODA demonstrate that 

hazardous waste regulation will not increase the protectiveness of regulatory controls at the state 

level, and that a Subtitle D program for CCR represents the most cost-effective and workable 

regulatory option for a federal CCR program.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0227-4

Organization1:Entergy Services, Inc. (Entergy)

Commenter1:Myra Glover

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:
264

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

State Programs in Arkansas and Louisiana Already Provide Adequate Control

Arkansas Pollution Control and Ecology Commission (“APC&E”) Regulation 22 includes siting 

criteria, design and operational standards, closure and post-closure care standards, financial 

assurance, and groundwater monitoring requirements which affect Arkansas CCR landfills. All 

CCR landfills in Arkansas are permitted as Class 3N Landfills under Regulation 22. This 

regulation provides for siting separation from water tables; airports; wetlands; floodplains; faults, 

seismic or otherwise unstable areas; setbacks from drinking water sources, dwellings, and 

property boundaries; and separation from endangered species. Class 3N Landfill siting criteria is 

compliant with 40 CFR Part 257, which is incorporated into Regulation 22. Regulation 22 

provides protective standards for CCR by dry disposal in a Class 3N Landfill; there is no permit 

option for wet disposal in Arkansas. The weblink to these regulations is at:

http://www.adeq.state.ar.us/regs/files/reg22_final_080426.pdf

As a requirement of state statute, Arkansas Department of Environmental Quality (“ADEQ”) 

staff performs on-site inspections of all landfills on a minimum quarterly basis for compliance 

with applicable regulations and permits. Additional inspections are also performed should a 

complaint be filed on a facility. Additionally, as a requirement of Regulation 22, a Professional 

Engineer (“P.E.”) currently registered in Arkansas is required to perform an annual engineering 

inspection report (AEIR) which includes site surveys, site capacity and site-life analysis, updated 

calculations for closure and post closure care cost estimates, and updated financial assurance.

Regulation 22 provides standards for groundwater monitoring and reporting modeled after the 

federal Subtitle D standards. Provision is made that Class 3N landfills may consider site-specific 

waste characteristics to help refine the sampling parameter list and frequency used in the sitespecific program.

All CCR landfills in Arkansas are required by statute to be permitted under the procedures of 

various APC&E regulations. Permit application technical documents are required to be prepared 

and certified by a P. E. and Professional Geologist (“P.G.”) registered in Arkansas. Permit 

procedures include multiple components of public notice, review and hearings; technical data 

review by ADEQ staff; and process for permit appeal to the APC&E.

ADEQ and Entergy believe the current regulations affecting CCR landfills in Arkansas to be 

adequate to protect human health and the environment. Operational standards addressed in 

Regulation 22 include stormwater and leachate management; operator training and licensing; 

waste spreading and compaction; equipment and facilities; maintenance and repairs; 

unauthorized waste exclusion and contingencies. Design aspects of Regulation 22 include site 

characterization and hydrogeologic investigations; separation from groundwater; analysis of 

waste constituents; bottom liner and final cover specifications; leachate collection system 

specifications, storage and disposal; closure plans, cost estimates and financial assurance; 

groundwater monitoring networks; construction quality assurance (CQA) plans and 
265

certifications.

ADEQ – Solid Waste Management Division permitting staff includes four engineers, an engineer 

supervisor which is required to maintain P.E registration, two geologists, a geology supervisor, 

and an assistant to the group. The permitting section is currently fully staffed. The Solid Waste 

Management Division also employs eight field inspectors, an inspector supervisor, as well as 

enforcement and support staff. ADEQ budget is currently adequate to maintain this staff and 

there are no known changes which will affect staffing.

The State of Louisiana Department of Environmental Quality (“LDEQ”) has substantially 

adopted, and is enforcing, all requirements under Subtitle D for its solid waste program, 

including coal combustion residuals. The specific requirements for landfills may be found at 

LAC 33:VII.709 and 711 for landfills, and at LAC 33:VII.709 and 713 for surface 

impoundments. Groundwater monitoring for both may be found at LAC 33:VII.Chapter 8. The 

regulated coal combustion residual units in Louisiana are all fully permitted under the state’s 

solid waste program. Thus none of the regulated coal combustion residual units in our state can 

be considered “open dumps” as defined under 40 CFR 257.2.

The following is a summary of Landfill / Surface Impoundment requirements under the 

Louisiana Solid Waste Program (with references to corresponding federal Subtitle D 

requirements):

1. Groundwater Monitoring during operation

a. Required for all landfills and surface impoundments; must include sufficient number of wells 

to represent groundwater quality at point of compliance (LAC 33:VII.805.A; 40 CFR 257.22). 

The Earthjustice comments state that existing sites in Louisiana are grandfathered, and are not 

required to do groundwater monitoring. This is incorrect.

b. The groundwater monitoring program at each facility must include sampling and analytical 

procedures to ensure representative results (LAC 33:VII.805.B; 40 CFR 257.23).

c. A Detection Monitoring Program is required for all facilities (LAC 33:VII.805.C; 40 CFR 

257.24).

d. An Assessment Monitoring Program is required whenever a statistically significant increase 

over background concentrations is detected and confirmed for one or more monitoring 

parameters (LAC 33:VII.805.D; 40 CFR 257.25).

e. Corrective Measures Assessment and Selection of Remedy required for those facilities in an 

Assessment Monitoring Program (LAC 33:VII.805.E-F; 40 CFR 257.26-27).

f. Corrective Action Implementation is required for those facilities in an Assessment Monitoring 

Program, following the Selection of Remedy (LAC 33:VII.805.G; 40 CFR 257.28).

2. Composite Liner: Required for all landfills and surface impoundments built after December 
266

31, 1997 (LAC 33:VII.711.B.5, 713.B.3)

3. Leachate Collection System: Required for all landfills built after December 31, 1997 (LAC 

33:VII.711.B.4)

4. Daily Cover: Daily cover or alternative daily cover required for all landfills (LAC 

33:VII.711.B.2; 40 CFR 257.3-8)

5. Dust Controls: Control of vectors, dust, litter, and odors required for all landfills and surface 

impoundments (LAC 33:VII.521.G.1). The Earthjustice comments state that Louisiana does not 

require dust control.

6. Run-off Controls: Surface-runoff diversion required for working areas of the landfill for all 

landfills (LAC 33:VII.711.A.3 and 5); Louisiana’s requirement is more stringent than Subtitle D 

requirements for industrial solid waste.

7. Separation from Water Table: No requirements in Louisiana regulations.

8. Financial Assurance: Required for all landfills and surface impoundments (LAC 

33:VII.521.K); Louisiana’s requirement is more stringent than Subtitle D requirements for 

industrial solid waste.

9. Composite Final Cover: Required for all landfills and surface impoundments closed with 

waste in place (LAC 33:VII.711.E.3, 713.E.3); Louisiana’s requirement is more stringent than 

Subtitle D requirements for industrial solid waste.

10. Groundwater Monitoring for 30 years post-closure period : Required for all landfills and 

surface impoundments closed after October 9, 1993 (LAC 33:VII.711.F.3, 713.F.2); Louisiana’s 

requirement is more stringent than Subtitle D requirements for industrial solid waste.

The three coal plants and associated CCR landfills that Entergy operates are permitted by the 

Arkansas and Louisiana Departments of Environmental Quality. Both state 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, and meet the stringent design criteria discussed 

above. The state programs in Arkansas and Louisiana demonstrate that states can effectively 

manage CCR disposal and should be the administrators of any Subtitle D option. Furthermore, 

Entergy believes that the intent of EPA’s proposed regulation of CCRs, to ensure protection of 

human health and the environment, can be adequately achieved through Subtitle D by issuing 

national minimum criteria and establishing dam and impoundment safety requirements to 

address the structural integrity of surface impoundments to prevent catastrophic releases, and 

that Arkansas and Louisiana’s existing regulations are a testimony to the ability of state 

programs to do so.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 
267

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0228-1

Organization1:Virginia Department of Environmental Quality (DEQ)

Commenter1:Jeffery Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 11.2.5

Comment Excerpt Text:

As we have previously stated, Virginia DEQ still believes that proposed regulations for the dry 

handling of CCRs continue to be unnecessary. Virginia, like many states, has a comprehensive 

regulatory program for the management of CCRs.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.
268

Comment Number: EPA-HQ-RCRA-2011-0392-0228-14

Organization1:Virginia Department of Environmental Quality (DEQ)

Commenter1:Jeffery Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1 7.1.2

Comment Excerpt Text:

The State of Failure: How States Fail to Protect Our Health and Drinking Water from Toxic Coal 

Ash report (State of Failure) also provides oversimplification of the regulatory requirements for 

Virginia’s surface impoundments and landfills.The regulatory requirements are summarized in 

Table 2, Table 3, and Part III of the report. As noted above, Virginia’s SWMR have requirements 

for industrial landfills that manage CCR. These requirements include groundwater monitoring, a 

liner system, engineering design of landfills to include protection from groundwater intrusion, 

and financial assurance for the closure and post-closure care of solid waste management 

facilities. Table 2 of the report incorrectly indicates that these items are not required. Of note, is 

the fact that the disposal of industrial waste has been regulated in Virginia since 1971 and 

comprehensive requirements for industrial waste landfills, from design through post-closure, 

have been in place since 1988. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0228-16

Organization1:Virginia Department of Environmental Quality (DEQ)

Commenter1:Jeffery Steers
269

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.4

Comment Excerpt Text:

And finally, Part III, of the State of Failure report indicates that 2009 TRI data shows that the 

majority of releases from electric generation sector are mercury. DEQ has reviewed this data and 

talking into consideration TRI releases from Virginia power plants and TRI releases from all 

industry sectors. From our 2009 TRI node data set, it indicates that the primary releases to land 

was not mercury and DEQ has not been able to recreate the data from this report and cannot 

confirm its validity.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0228-17

Organization1:Virginia Department of Environmental Quality (DEQ)

Commenter1:Jeffery Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Contrary to the unsupported claims set forth in the State of Failure report, Virginia’s legacy is 

not one of mismanagement of CCR, but one of continued improvements to better protect our 

citizens and our environment. In fact, Virginia has a regulatory program for landfills, surface 

impoundments, and dams that is protective of public health and the environment. DEQ is 

committed to its mission to protect and improve the environment for the well being of all 
270

Virginians.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0228-8

Organization1:Virginia Department of Environmental Quality (DEQ)

Commenter1:Jeffery Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Clarifications on information in the Earthjustice Comments and the State of Failure report

The adequacy of Virginia’s regulatory programs was discussed in the comments submitted by 

Earthjustice and further discussed and criticized in the State of Failure report. However, much of 

the data presented is incorrect, incomplete, or unclear and may be misleading in its 

representation of Virginia’s regulatory requirements.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
271

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0233-5

Organization1:MidAmerican Energy Holdings Company

Commenter1:Cathy Woollums

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

4. New Analyses of State Programs – Due to the limited amount of time provided to submit 

comments, MidAmerican has not had an opportunity to conduct a comprehensive analysis of 

perceived gaps in state regulatory programs applicable to the management of CCRs. 

MidAmerican submits that EPA should objectively determine whether there are gaps in state 

programs, rather than relying on others’ subjective assertions of the robustness of state programs

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0234-3

Organization1:Wisconsin Electric Power Company (We Energies)
272

Commenter1:Bruce Ramme

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1 10.5.2.3

Comment Excerpt Text:

Section VII (New analysis of state programs) 

The substantive response of nearly 30 states agencies provides extensive information about 

existing state regulatory programs for remediating impacted sites and for beneficially utilizing 

CCRs. This new information provides a strong foundation for this docket, and strong support that 

these existing programs ensure environmental protection and public health, and therefore support 

an EPA determination of a Subtitle D, non-hazardous approach to managing CCRs. 

In reviewing the NODA docket as it pertains to state programs for regulation of CCRs, it is clear 

from the nearly 30 state agency comments that states overwhelmingly object to a RCRA Subtitle 

C approach for managing CCRs. It is not warranted based upon over 20 years of testing and 

analysis, and would damage existing regulatory programs. State agencies strongly favor a 

Subtitle D, non-hazardous approach to managing CCRs and dispute statements that the states are 

not capable of regulating CCRs, especially where a clear set of national criteria are provided. 

Information provided in detailed comments by two organizations representing state agencies, the 

Association of State and Territorial Solid Waste Management officials (ASTSWMO) and the 

Environmental Council of States (ECOS) also encourage EPA to avoid regulatory over-reaching 

with CCR disposal rules under RCRA Subtitle C. 

We believe that preserving beneficial use programs such as Wisconsin’s NR 538 is an effective 

and efficient method of reducing landfilling demands while protecting human health and the 

environment. EPA can administer similar beneficial use programs based on appropriate criteria 

created for national application. Site based criteria which recognizes the specific hydrological 

and geological characteristics of a geographical area and is understood by local regulatory 

agencies is a critical component of such national criteria. 

As noted above under Section VI comments, there are specific examples of how the Wisconsin 

Department of Natural Resources administers remediation (NR700), landfill (NR500) and 

beneficial use (NR 538) programs which provide protection of human health and the 

environment and are effectively working under current regulations without the imposition of 

RCRA Subtitle C rules. 

For each of the sites listed, it should be noted that the Wisconsin Department of Natural 

Resources has approved and administered remediation plans under a regulatory framework 

which was designed to ensure environmental protection and protect public health (Wisconsin 

Administrative Code, Natural Resource 700 rule series). It is our specific comment that the 

Wisconsin regulations for managing CCR landfills (Wisconsin Administrative Code, Natural 

Resource 500 rule series) and investigation / remediation of environmentally impacted sites 

(Natural Resource 700 rules) are efficient and effective tools for environmental protection. As a 
273

further endorsement of state administered regulatory programs, the Beneficial Use of Industrial 

By-Products rules under Wisconsin Administrative Code NR 538 is a highly effective program 

for controlling and promoting the use of CCRs in construction and industry, and helping to 

minimize the disposal of these materials. The adequacy of these state programs has clearly been 

established and Wisconsin can demonstrate that their existing regulatory programs for managing 

and remediating impacted sites and for beneficially utilizing CCRs ensure environmental 

protection and protect public health. 

We support the inclusion of document EPA-HQ-RCRA-2011-0392-0084. This document 

provides comments by the Wisconsin Public Service Commission and the Wisconsin Department 

of Natural Resources. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

The commenter is also referred to Unit IV of the preamble for a discussion on our decision to 

regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a 

complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2011-0392-0236-14

Organization1:Iowa Department of Natural Resources (IDNR)

Commenter1:Brian Tormey

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2

Comment Excerpt Text:

In conclusion, while the IDNR acknowledges that improvements to Iowa’s CCR regulatory 

programs can and should be made, the mischaracterization and unsupported claims regarding our 

regulatory control of CCR should not be used to substantiate Subtitle C regulation. Such 
274

misrepresentations are a distraction to the development of an appropriate public policy regarding 

the management of CCR that ensures the protection of human health and the environment.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0236-2

Organization1:Iowa Department of Natural Resources (IDNR)

Commenter1:Brian Tormey

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 8.9

Comment Excerpt Text:

Because of the significant programmatic, logistic and economic implications to our state from 

the proposed regulation of CCRs, it’s imperative that EPA have accurate data with which to base 

a determination. Regrettably, some information received during the 2010 proposed rule public 

comment period regarding Iowa’s CCR regulatory programs and disposal facilities was factually 

inaccurate or exaggerated to substantiate ulterior agendas. Specifically, IDNR would like to 

respond to claims made by Earthjustice and other environmental organizations in comments 

submitted during the 2010 proposed rule comment period and expressed in Sections VI and VII 

of the NODA.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 
275

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0236-4

Organization1:Iowa Department of Natural Resources (IDNR)

Commenter1:Brian Tormey

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Section VII: Comments of Earthjustice, Environmental Integrity Project, Sierra Club, Natural 

Resources Defense Council, Southern Alliance For Clean Energy, Southern Environmental Law 

Center, and Physicians For Social Responsibility (Document No. EPA-HQ-RCRA-2009-0640-

6315)

This report contains several inaccuracies and misrepresentations of Iowa’s CCR regulatory 

programs that warrant clarification and correction. This report also uses the same yes/no 

evaluation that both overstates and oversimplifies regulatory requirements of state programs it’s 

attempting to summarize. The following are notable inaccuracies within this submittal:

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 
276

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0237-3

Organization1:Edison Mission Energy, LLC

Commenter1:Basil Constantelos

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.5

Comment Excerpt Text:

V. EPA’S PUBLIC HEALTH AND ENVIRONMENTAL CONCERNS RELATED TO CCR 

DISPOSAL ARE BETTER ADDRESSED THROUGH A MORE NARROWLY TAILORED 

APPROACH USING EPA’S EXISTING AUTHORITY.

EPA requests comment on whether to consider additional data relating to state regulatory 

programs. In general, EME submits that EPA has no basis in law or fact to take over the state 

programs designed to regulate non-hazardous solid wastes. Rather, when it finds such a 

regulatory program to be insufficient, EPA should work with that state to improve the regulatory 

program and, as is necessary to meet its public health and environmental standards, use the 

Agency’s authority under RCRA § 7003. EPA’s Proposed Rule is unnecessary to meet the 

agency’s concerns and overly 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 quality. Indeed, Pennsylvania’s 

regulatory program for CCR disposal is of such high quality that even those arguing to remove 

state control over CCRs were forced to concede as much [Footnote 27: Earthjustice Comment at 

17.]. The Proposed Rule would unnecessarily 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, treatment 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 

Health and Environmental Concerns
277

Pennsylvania’s regulatory framework covers CCR and other waste by-products of the 43 coalfired 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 

Environmental 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 regulatory framework 

served as a basis for the EPA’s existing Guide for Industrial Waste Management [Footnote 32: 

Id.].

Illinois’s regulatory framework for the disposal of CCRs is comprehensive, strictly enforced, and 

more than sufficient to meet the 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-hazardous 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 the 

application of the Illinois standards to a Midwest Generation facility, please see the attached 

rebuttal to “In Harm’s Way” that details Midwest Generation’s and Illinois EPA’s handling of 

the Lincoln Quarry facility.]. The IEPA requires that all non-hazardous solid waste landfill 

operations have leachate collection and management systems, groundwater monitoring, properly 

located monitoring wells, a zone of attenuation, and daily and final cover for the landfills. The 

Board does grant “Adjusted 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 federal law and the landfill can continue to afford the same level of protection to public 

health and the environment as the generally applicable state landfill regulations.

The regulatory programs in Pennsylvania and Illinois are in no way deficient and currently meet 

or exceed EPA’s public health and environmental standards. For those states that have enacted, 

maintained, and enforced a comprehensive regulatory framework for the disposal of CCRs the 

Proposed Rule would be both costly and unnecessary. 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 maintain 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 
278

imminent and substantial endangerment to human health and the environment rather than 

institute the overly broad Subtitle C option in the Proposed Rule and unfairly and inefficiently 

punish states, operators of electrical generating units, and ultimately consumers.

As we noted in our prior comments, EPA acknowledges 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 that 

State regulatory programs are generally adequate, and because Federal authorities exist that can 

address these wastes, EPA has concluded that current management practices and regulatory 

controls 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 standard 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 under the section [Footnote 37: Dague v. City of Burlington, 

935 F.2d 1343 (2d Cir. 1991).]. This legal precedent confirms that the scope of § 7003 authority 

is broad and more than sufficient to mitigate the risks associated with each of the groundwater 

contamination cases cited in the Proposed Rule. The legislative history, which states that § 7003 

is “a prospective act designed to prevent improper disposal of hazardous waste types in the 

future” further confirms that the section was intended to address exactly the types of risks 

associated with the cases cited in the proposed rule [Footnote 38: United States v. Waste 

Industries, Inc., 734 F.2d 159, 166 (4th Cir. 1984) (quoting H.R. Committee Print No. 96-IFC 

31, 96th Cong., 1st Sess. at 32 (1979) (“the Eckhardt 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 Assurance, 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, environmental 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 without 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 

Subtitle D’s standards.
279

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0238-15

Organization1:Southern Company

Commenter1:Chris Hobson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

B. State-Specific Comments 

Following are comments on the four states served by Southern Company’s service territory 

utilities 

1. Alabama 

The NGO comments base their conclusions in part on allegations of various purported 

deficiencies in the regulation of CCBs in various states, including Alabama. [Footnote 46: See 

NGO Comments, supra note 20, at 18-19, 22, 25, 49.] The comments fail to take into account 

recent statutory and regulatory activity in Alabama. Under a statute enacted on May 25, 2011, 

the Alabama Department of Environmental Management (“ADEM”) is authorized to regulate the 

disposal of CCBs. The new statute revises the definition of “solid waste” to include CCBs, and it 

explicitly authorizes ADEM to implement a Subtitle D program for existing CCB facilities that 

complies with federal requirements when federal standards are promulgated. [Footnote 47: Ala. 

Act. No. 2011-258 (2011) (amending Ala. Code §§ 22-27-2, 22-27-3).] Until new federal 

requirements take effect, any new CCB facility will be subject to ADEM’s Subtitle D permitting 

authority. 
280

ADEM has proposed new regulations to implement the statute. Most recently, as part of the 

rulemaking process, ADEM held a public hearing on November 9, 2011. The proposed 

amendments to ADEM’s regulations have not been controversial, and the rulemaking process is 

proceeding in an orderly fashion. 

Accordingly, assertions in the NGO comments pertaining to various regulatory requirements 

(groundwater monitoring, liners, etc.) [Footnote 48: NGO Comments, supra note 20, at 25-36.] 

do not reflect current information. Under the new statute and regulations, any new CCB facility 

constructed in Alabama will be subject to Alabama’s current solid waste disposal standards, 

[Footnote 49: See generally Ala. Admin. Code r. 335-13-4-.21.] even in the absence of new 

federal standards. Alabama’s solid waste program and regulations comply with EPA’s Subtitle D 

standards. 

The NGO comments also assert that Alabama and other states are not “expected” to adopt 

federal Subtitle D guidelines. [Footnote 50: NGO Comments, supra note 20, at 48-49.] That 

assertion is false and contrary to available information. First, as Southern Company notes above, 

[Footnote 51: See supra Part VI.A.2.] any inference drawn from state action or inaction in the 

absence of a federal standard suffers from an insurmountable logical flaw. The NGOs attempt to 

predict the likelihood of a state adopting federal standards by drawing inferences from what 

states did at a time when no federal standard was in place. That, however, is not the question for 

today. With federal regulations pending, the issue is what the states will do if and when EPA 

adopts Subtitle D standards. When the question is framed appropriately, the answer as it pertains 

to Alabama is clear: In the past, after EPA has issued standards under Subtitle D, ADEM has 

responded by developing a program that complies with federal standards; submitting that 

program to EPA; receiving EPA’s approval; and implementing the program effectively. That is 

the best indicator of the likely future response of ADEM with respect to a CCB program. 

Second, the assertion that ADEM is “not expected” to implement a CCB program is contrary to 

the comments ADEM submitted to EPA in response to the proposed rule. ADEM stated as 

follows: 

The Department feels strongly that its implementation of the RCRA Subtitle D program over the 

past 20+ years more than demonstrates the adequacy of Alabama’s Solid Waste program. Under 

our State statutory authority and the associated regulations, ADEM implements a program that 

meets, and in some ways, exceeds the technical and administrative requirements of both the 

existing Subtitle D regulations as well as the proposal. . . . It is our firm contention that 

Alabama’s solid waste program is more than sufficient to adequately implement the regulatory 

requirements in the proposed Subtitle D option. [Footnote 52: Comments of ADEM, Doc. No. 

EPA-HQ-RCRA-2009-0640-10227, at 3.] 

These are not the statements of an agency that plans to avoid appropriate regulatory action. 

Third, the assertion is inconsistent with ADEM’s governing statute. ADEM is explicitly 

authorized to regulate any new CCB disposal facility under its existing Subtitle D program and 

to implement federal requirements for CCB disposal pursuant to federal requirements. [Footnote 

53: See Ala. Code §§ 22-27-2, 22-27-3.] 
281

2. Florida 

In its previous comments, Southern Company outlined Florida’s regulatory scheme addressing 

CCB disposal and beneficial use and Florida’s “robust and effective” program for CCB 

regulation while supporting CCB beneficial use. [Footnote 54: Southern Company Comments, 

supra note 2, at Part VI.B.] Southern Company strongly objects to the statements, data, and 

characterizations in the NGO comments regarding Florida’s program and Florida’s inferred 

inability to responsibly regulate CCB management activities. Southern Company provides the 

following comments about Florida’s program in order to correct certain of these statements, data, 

and characterizations. Southern Company also refers EPA to the comments of the Florida 

Electric Power Coordinating Group, Inc. (“FCG”) and its response outlining the inaccurate 

and/or misleading statements or information contained in the NGO comments regarding 

Florida’s regulatory program. [Footnote 55: Gulf Power is a member of the Florida Electric 

Power Coordinating Group, Inc. The FCG is a non-profit association consisting of twenty-eight 

(28) investor-owned, municipally-owned, and cooperatively-owned electric utilities engaged in 

the business of providing the majority of electric power to the public in the State of Florida.] 

a. Background 

Florida’s Solid Waste Management Rule [Footnote 56: Chapter 62-701, F.A.C.] 

comprehensively addresses solid waste management and disposal in the state. Florida’s Solid 

Waste Management Rule has been endorsed by EPA through the federal agency’s approval of 

Florida’s program under Subtitle D of RCRA for municipal solid waste landfills (“MSWLF”) in

Florida. The rule applies to the management of all solid waste (including industrial waste like 

CCBs) but contains few specific requirements that would distinguish industrial solid waste from 

other types of solid wastes. 

In the 1990’s, FDEP attempted to clarify the disposal requirements for industrial solid wastes. 

The effect of the FDEP rulemaking at that time was to apply Florida MSWLF requirements to all 

industrial solid waste disposal facilities. That rule, however, also contained procedures for 

specific facilities or industry groups to seek relief from all or certain of the MSWLF 

requirements. On behalf of its members, the FCG submitted such a request and provided data in 

support. FDEP granted the FCG’s request noting that: 1) Class I landfill (i.e., MSWLF) standards 

would not automatically apply to these facilities; 2) these disposal facilities would continue to be 

evaluated on a case by case basis; and 3) FDEP anticipated initiating rulemaking to address 

industrial waste disposal. 

Thus, design and operational criteria for new industrial waste disposal facilities (such as CCB 

landfills) are established on a case-by-case basis, though FDEP staff typically refers to Florida’s 

Solid Waste Management Rule as a starting point. Indeed, FDEP’s written determination 

concerning the FCG’s request specifically provided that “[w]hile Class I landfill standards will 

not automatically apply, some or all of these standards may be required in individual cases.” 

[Footnote 57: See Letter from FDEP to Thomas DeRose (October 10, 1994) (included as 

Attachment B to these comments).] In every case, FDEP requires owners/operators of CCB 

management units to provide reasonable assurance that such units will not cause pollution and 
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violation of FDEP water quality standards. 

While FDEP does not have a separate regulatory program specifically addressing CCB disposal, 

Florida does effectively regulate the disposal of CCBs under its existing statutory and regulatory 

framework. Indeed, in its own comments, FDEP confidently (and appropriately) asserts that it 

“believes, with existing state laws, it is appropriately regulating the disposal of CCRs as solid 

waste in Florida.” [Footnote 58: See FDEP Comments, Doc. No. EPA-HQ-RCRA-2009-0640-

6846.1, at 3 (Nov. 18, 2010).] This is not state agency hubris. This is fact demonstrated by 

FDEP’s decades long experience in comprehensively regulating solid waste activities in the state 

(including CCB management), its EPA-approved MSWLF program, and its implementation of a 

groundwater protection program that has been in place for more than 25 years. 

b. Groundwater Monitoring 

In the NGO comments, Florida is included in a grouping of seven states that purportedly exempt 

on-site or mono-fill disposal from mandatory groundwater monitoring. [Footnote 59: NGO 

Comments, supra note 20, at 26, Table 2.] This is false. Florida boasts a comprehensive 

regulatory program for the protection of Florida groundwater resources. That program was 

developed in the early 1980s, recognizing Florida’s heavy reliance on groundwater resources for 

potable drinking water and other uses. As a matter of course, CCB management units authorized 

by Florida power plant site certification orders and conditions or permits and authorizations 

issued by FDEP (e.g., industrial wastewater/NPDES permits, solid waste management permits), 

include extensive groundwater monitoring and reporting requirements for CCB management 

units and related activities. [Footnote 60: See also RR. 62-520.600; 62-701.510, F.A.C.] 

Similarly, the NGO comments include Florida in another group of seven states that allegedly 

exclude or exempt CCB surface impoundments from monitoring requirements. [Footnote 61: 

NGO Comments, supra note 20, at 26, Table 3.] This is also false. As Southern Company has 

noted previously, CCB surface impoundments are also regulated under power plant site 

certification orders and conditions or NPDES permits. [Footnote 62: Southern Company 

Comments, supra note 2, at 183, 188.] Those orders or permits typically require groundwater 

and/or surface water monitoring requirements pursuant to applicable FDEP rules. [Footnote 63: 

See Chs. 62-520; 62-621; 62-701, F.A.C.] 

c. Liners and Leachate Collection Systems 

It is important to re-emphasize that, while FDEP MSWLF liner and leachate collection system 

requirements are not automatically applicable to CCB landfills, nothing prohibits FDEP from 

requiring such systems for CCB management facilities. In particular, for many years, FDEP has 

routinely required the installation of liners including double synthetic geomembrane liners, clay 

liners, and pozzolanic liners for CCB management units. Moreover, several Florida electric 

utilities have constructed, or are currently in the process of constructing new CCB landfills or 

expansions of existing CCB landfills with liners and leachate collection systems. FDEP notes in 

its comments on EPA’s proposed rules, that it “intends to develop a new rule to update and 

consolidate our requirements for managing indus58trial waste including CCRs.” [Footnote 64: 

See FDEP Comments, supra note 58, at 2, 3.] Florida electric utilities understand that this 
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rulemaking will likely involve FDEP’s establishment of specific liner and leachate collection 

system requirements for new CCB management units and expansions to existing CCB

management units. Thus, the NGO’s comments improperly characterize FDEP’s rules as 

providing for an exemption from liner and leachate collection systems. [Footnote 65: See NGO 

Comments, supra note 20, at 28-30, Tables 8-11.] Whether or not to require such systems for 

CCB management units has always been within the discretion of the FDEP and, as stated 

previously, recent trends reflect FDEP’s routine imposition of liner and leachate collection 

system requirements for new CCB management units and expansions to existing CCB 

management units. 

d. Daily Cover and Dust Control Measures 

Florida adequately handles daily cover and dust control. As in Georgia, infra, daily cover is 

traditionally required to control disease vectors associated with putrescible waste, fires, odors, 

blowing litter, and scavenging. Daily cover is not required where, as with CCBs, these risks are 

not present. As for dust control measures, Florida’s air rules regulate unconfined particulate 

matter (“fugitive dust”), and impose and implement the PM10 and PM2.5 National Ambient Air 

Quality Standards (NAAQS). Chapter 62-296, F.A.C., which sets stationary source emission 

standards, limits visible emissions from any activity to 20 percent opacity, R. 62-296.320(4)(b), 

F.A.C., and requires reasonable precautions to prevent emissions of unconfined particulate 

matter. R. 62-296.320(4)(c) (providing examples), F.A.C. Chapter 62-213, F.A.C., the Title V 

Operating Permit Program, implements these provisions in every Title V permit issued in 

Florida. Moreover, Chapters 62-4, 62-210 and 62-212, F.A.C., prohibit FDEP from issuing any 

air permit that would cause or contribute to a violation of any NAAQS. 

3. Georgia 

Georgia has a solid waste regulatory program, which includes CCBs, implemented by the 

Georgia Environmental Protection Division (“EPD”). Georgia’s CCB program includes 

permitting, liner, and groundwater monitoring controls for landfills similar to those under the 

Subtitle D and Subtitle D Prime options. The applicable Georgia rules were originally drafted to 

handle municipal solid waste – a waste which is both less predictable and controllable than 

CCBs. Because the municipal solid waste rules were later broadened to encompass industrial 

wastes, Georgia’s existing solid waste rules are more than adequate to manage CCBs. 

a. Georgia Power’s Experience with the State of Georgia Program 

Presently, Georgia Power has eight active CCB landfills permitted by EPD under Georgia’s solid 

waste regulatory framework. Georgia Power also has four closed CCB solid waste landfills – two 

of which had been ash ponds – under the supervision of EPD. Over approximately the last 

twenty years, as current ash pond capacity has decreased and new disposal sites were needed for 

the byproducts of new air pollution control equipment, Georgia Power has, in accordance with 

the Georgia regulations, permitted additional CCB solid waste disposal facilities. Active ash 

ponds with existing capacity, which are permitted under EPD’s NPDES program, effectively 

manage the remaining CCB volumes. It is of utmost importance that the existing active ash 

ponds, some with a remaining life of twenty or more years, remain operational to manage CCBs 
284

until the ash ponds are full. In Georgia, all ash ponds must be closed in accordance with 

Georgia’s solid waste rules. 

b. Groundwater Monitoring 

Several comments in documents subject to the Notice improperly characterize Georgia’s 

groundwater monitoring requirements. For example, the NGO Comments claim that many states, 

including Georgia, “either require no monitoring of their numerous ash ponds or monitoring only 

after the ponds have been closed” and that “[m]onitoring data from state files in Georgia were so 

minimal that no assessment of impacts could be made.” [Footnote 66: Earthjustice and Sierra 

Club, In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their 

Environment, Aug. 26, 2010, Doc. No. EPA-HQ-RCRA-2011-0392-0006, at ix.] Earthjustice 

and Sierra Club also claim that some states, including Georgia, “provide for variance of 

monitoring requirements” [Footnote 67: NGO Comments, supra note 20, at 26 Table 2; see id. at 

39 Table 25.] for CCB landfills and “have no groundwater monitoring requirements” for CCB 

surface impoundments. [Footnote 68: Id. at 26 Table 3; see id. at 41 Table 26.] The NGOs 

indicated that some states “do not require a minimum of three downgradient wells and one 

upgradient well at CC[B] landfills.” [Footnote 69: Id. at 28 Tables 6-7.] The NGOs also argue 

that Georgia allows a variance for post-closure groundwater monitoring requirements for CCB 

landfills [Footnote 70: Id. at 36 Table 23.] and does not require post-closure groundwater 

monitoring for CCB surface impoundments. [Footnote 71: Id. at 36 Table 24.] 

As emphasized above, [Footnote 72: See supra Part VI.A.2.] the fact that not all states require 

groundwater monitoring at all stages (e.g., during operation and closure) does not bolster the 

NGOs’ argument that a Subtitle D regulatory program would be inadequate and thus that EPA 

should adopt a Subtitle C regulatory program. Again, the only effective method to analyze 

whether states, including Georgia, will adopt regulations consistent with Subtitle D regulations, 

in the event EPA adopts a Subtitle D program, is to analyze states’ responses to Subtitle D 

standards in the past. The NGO Comments inappropriately rely upon states’ current regulation of 

CCBs when no Subtitle C or Subtitle D regulations have been in place at the Federal level. 

Georgia EPD’s authority and experience under its existing regulatory program does, in fact, 

provide assurances that the state will continue to assume responsibility for the oversight of 

groundwater monitoring and related functions at CCB facilities. EPD has expertise in detection, 

assessment, and closure of disposal sites. Pursuant toGeorgia’s Hazardous Sites Response Act 

(“HSRA”) program, which became effective in Georgia in 1992, EPD has the authority to 

identify, assess, and remediate properties that potentially pose a risk to the environment. Since 

the mid- 1990s, several Georgia Power plant sites have undergone HSRA environmental 

investigations that included groundwater testing of various metal constituents in the vicinity of 

ash ponds. Those HSRA investigations of Georgia Power facilities, including groundwater 

monitoring near ash ponds, resulted in findings of compliance with the appropriate HSRA Risk 

Reduction Standards. 

Further, the solid waste landfill permits for Georgia Power’s eight active solid waste landfills 

(including some permits in the application process) have groundwater monitoring requirements, 

which includes all Georgia Power landfills constructed since approximately the year 2000. Three 
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of Georgia Power’s four closed CCB solid waste landfills also have groundwater monitoring. 

With regard to downgradient wells, the State of Georgia requires adequate monitoring consistent 

with Subtitle D requirements, which is almost always more stringent than three downgradient 

wells. 

c. Daily Cover and Dust Control Measures 

The NGO Comments indicate that a few states, including Georgia, “provide for variance of daily 

cover requirements” [Footnote 73: NGO Comments, supra note 20, at 31 Table 12.] and “allow 

for variance of dust control requirements” for landfills and surface impoundments. [Footnote 74: 

Id. at 31 Tables 13-14.] Daily cover has been a requirement to control disease vectors associated 

with putrescible waste, fires, odors, blowing litter, and scavenging. CCBs do not present these 

risks. Georgia landfill permits contain a general condition requiring that “the landfill shall be 

operated in such manner as to prevent air, land, or water pollution, and public health hazards.” 

[Footnote 75: Georgia Rule 391-3-4.07(l).] Dust controls from surface impoundments are 

covered under Clean Air Act fugitive dust controls. 

d. Run-Off Controls and Construction in Water Table 

The NGO Comments assert that several states, including Georgia, “do not require run-off control 

at CC[B] landfills.” [Footnote 76: NGO Comments, supra note 20, at 32 Table 15.] This 

statement is incorrect. All landfill permits in the state of Georgia require run-on and run-off 

controls. [Footnote 77: Georgia Rule 319-3-4.07(3)(i).] The NGO Comments asserted that some 

states, including Georgia, “place no restriction on the location of CC[B] landfills with respect to 

the water table.” [Footnote 78: NGO Comments, supra note 20, at 32 Table 17.] This statement is 

also incorrect. Georgia regulations do not allow ash to be placed in the water table. Georgia 

requires that the waste be separated from seasonal high groundwater by five feet. [Footnote 79: 

Georgia Rule 391-3-4-.05(1)(l(3).] 

e. Closure 

The NGO Comments indicate that only one state program reviewed included a mandatory 

requirement that final cover for CCB disposal sites include a composite element and that 

“[i]mpermeable covers are essential.” [Footnote 80: NGO Comments, supra note 20, at 34.] The 

State of Georgia requires adequate cover, including requirements that— [t]he final cover system 

must be designed and constructed to: (1) Have permeability less than or equal to the permeability 

of any bottom liner system or natural subsoils present, or a permeability no greater than 1 x 10-5 

c./sec, whichever is less, and (2) Minimize infiltration through the closed MSWLF unit by the 

use of an infiltration layer that contains a minimum of 18-inches of an earthen material, and (3) 

Minimize erosion of the final cover by the use of an erosion layer that contains a minimum 6-

inches of earthen material that is capable of sustaining native plant growth. [Footnote 81: 40 

C.F.R. § 258.60(a). Georgia Rule 391-3-4-.11(1)-(2) incorporates section 258.60 by reference 

and applies the regulation “to all solid waste handling facilities.”] 

The NGO Comments also indicate that among other states, Georgia “allow[s] for a variance of 
286

final cover requirements for CC[B] landfills” [Footnote 82: NGO Comments, supra note 20, at 

35 Table 21; see also Table 27.] and has “no final cover requirements for CC[B] surface 

impoundments.” [Footnote 83: Id. at 35 Table 22; see also Table 27(second Table 27).] The State 

of Georgia requires closure cover permeability restrictions consistent with those for current 

Subtitle D regulations for landfills. [Footnote 84: Georgia Rule 391-3-4-.11(1)-(2) (incorporating 

by reference 40 C.F.R. § 258.60).] 

f. Financial Assurance 

The NGOs assert that some states, including Georgia, “have no financial assurance requirement 

for CC[B] surface impoundments.” [Footnote 85: NGO Comments, supra note 20, at 34 Table 

20.] The State of Georgia requires financial assurance of CCB impoundments when closed as 

landfills. [Footnote 86: Georgia Rule 391-3-4-.13.] This requirement encompasses closure and 

post-closure care costs. 

4. Mississippi 

Mississippi has a robust and comprehensive regulatory scheme for permitting CCB facilities, as 

explained more fully in Southern Company’s prior comments on EPA’s proposed rules. 

[Footnote 87: Southern Company Comments, supra note 2, at Part VI.D.] Southern Company 

objects to the inference in the NGO Comments that Mississippi’s regulatory program contains 

“serious and widespread deficiencies.” [Footnote 88: NGO Comments, supra note 20, at 17.] 

Mississippi effectively manages the disposal and beneficial use of CCBs in order to adequately 

safeguard health, safety and welfare, thereby ensuring the protection of human health and the 

environment. 

a. Background 

The Mississippi Department of Environmental Quality (“MDEQ”), Environmental Permits 

Division currently oversees CCB disposal in the state through Mississippi’s Solid Waste 

Disposal Law and its implementation of solid waste management regulations, which 

comprehensively address solid waste management and disposal in the state. [Footnote 89: Miss 

Code §§ 17-17-1 to 17-17-67; Nonhazardous Solid Waste Management Regulations, SW-02.] 

Contrary to the NGO Comments, MDEQ’s permitting process for solid waste landfills is 

comprehensive, and the permitting process for solid waste management facilities is rigorous, 

requiring, at a minimum, siting analyses, zoning approvals, operational plans, groundwater 

monitoring, corrective action planning and management, and long-term closure planning. The 

CCB solid waste landfills in Mississippi have been sited under stringent state siting criteria that 

are consistent with Subtitle D standards. All of Mississippi Power’s CCB solid waste landfills 

are operated in accordance with applicable regulations and in a manner that is protective of 

human health and the environment. 

b. Groundwater Monitoring 

As with Florida, the NGO Comments incorrectly place Mississippi in a category that exempts 

on-site or monofill disposal from groundwater monitoring. [Footnote 90: NGO Comments, supra 
287

note 20, at 26, Table 2] MDEQ requires owners and operators of CCB dry storage facilities to 

incorporate and implement groundwater monitoring and corrective action plans into their solid 

waste permits, and these plans must consider any potential risks posed to human health and the 

environment. [Footnote 91: MDEQ Non-Hazardous Solid Waste Management Regulations, 

MDEQ SW-2, IV.D.2.a] Requirements of groundwater monitoring plans include, and will 

continue to require, analyses of the proximity of human and environmental receptors, design of 

the unit, age of the unit, types and quantities of wastes disposed, and the resource value of any 

underlying aquifers. [Footnote 92: Id.] In addition, monitoring is required throughout the active 

life and post-closure periods until an owner demonstrates that there is no potential for migration 

of constituents from the facility to nearby aquifers [Footnote 93: Id.]. 

The NGO comments letter also incorrectly include Mississippi in an additional group that 

eliminates the need for surface impoundments to have monitoring requirements. [Footnote 94: 

NGO Comments, supra note 20, at 26, Table 3.] In Mississippi, surface water impoundments are 

regulated under NPDES permits, and these permits require operators of such surface 

impoundments to have monitoring plans in place pursuant to the applicable MDEQ regulations. 

The NGO comments letter goes further by implying that semi-annual sampling is insufficiently 

protective of health and the environment. [Footnote 95: NGO Comments, supra note 20, at 26.] 

However, MDEQ regulation, under an EPA approved program, specifically require that 

“sampling procedures and frequency must be protective of human health and the environment.” 

[Footnote 96: SW-02, IV.D.3.c.] Further, an additional measure for protection of human health 

and the environment is the requirement that groundwater monitoring can only be suspended if 

certified by a “qualified groundwater scientist and approved by the Department ...”. [Footnote 

97: SW-02, IV.D.1.e.] MDEQ has no plans to eliminate current monitoring requirements at 

existing CCB impoundments. 

With regard to monitoring wells, the NGOs incorrectly imply that monitoring in Mississippi is 

insufficient just because MDEQ does not specifically require three downgradient wells. 

[Footnote 98: NGO Comments, supra note 20, at 28, Tables 6-7.] MDEQ requires monitoring 

consistent with Subtitle D requirements and further includes that monitoring systems must be 

installed with a sufficient number of wells at appropriate locations and depths to yield results that 

are protective of human health and the environment. [Footnote 99: SW-02, IV. D.2.a.] 

c. Liners and Leachate Collection Systems 

MDEQ requires that new landfills and lateral expansions of existing landfills be constructed with 

a composite liner and a leachate collection system. For example, Plant Daniel bottom ash pond is 

lined with a synthetic, composite liner which meets specifications required by MDEQ. The slurry 

wall at Plant Watson’s ash pond penetrates up to 65’ down to and is connected to the clay layer 

beneath the pond and encircles the entire pond. These facilities are governed and operated under 

the NPDES program. 

d. Dust Controls 

The NGOs assert that Mississippi is one of several states that does not require dust controls at 
288

CCB landfills. [Footnote 100: NGO Comments, supra note 20, at 31, Table 13.] Once again, this 

statement is false. Owners of all landfills in Mississippi, including CCB landfills, must ensure 

that they do not violate any applicable requirements developed under the Mississippi State 

Implementation Plan (“SIP”), which is approved by EPA. [Footnote 101: SW-02, IV.A.5a.] The 

Mississippi SIP has specific provisions adopted for the purpose of preventing, abating, and 

controlling air pollution caused by air contaminants being discharged into the atmosphere as 

particulates or combinations thereof. [Footnote 102: Air Emission Regulations for the 

Prevention, Abatement, and Control of Air Contaminants; APC-S-1.] Further, management 

requirements, such as dust controls, are specifically referenced in that “no person shall cause or 

permit the handling or transporting or storage of any material in a manner which allows or may 

allow unnecessary amounts of particulate to become airborne.” [Footnote 103: APC-S-1, Page 

8.] 

e. Closure 

Once again, the NGOs inadequately characterize closure requirements for CCB disposal sites in 

Mississippi by attempting to imply that Mississippi closure requirements are inadequate because 

it only requires a soil final cover for CCB landfills. [Footnote 104: NGO Comments, supra note 

20, at 35, Table 21.] MDEQ requires a final cover system that is designed to minimize 

infiltration and erosion, and this final cover must be comprised of an erosion layer underlain by 

an infiltration layer. [Footnote 105: SW-02, I.V.E.2.] Furthermore, closure requires that any 

required leachate system remain until an operator can affirmatively determine that there is no 

longer any threat to human health and the environment. 

Additionally, the NGO contends that post-closure monitoring be at least 30 years. [Footnote 106: 

NGO Comments, supra note 20, at 35, Table 21.] This is exactly the minimum requirement that 

MDEQ places on facilities sited in the state: post-closure care must be conducted for a minimum 

of 30 years and during such time period the operator must maintain the integrity and 

effectiveness of any final cover, prevent run-on and run-off from eroding or damaging the final 

cover and comply with all groundwater protection standards. [Footnote 107: SW-02, IV.D.3.] 

The State of Mississippi requires closure to be consistent with those for current Subtitle D 

regulations. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 
289

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0238-18

Organization1:Southern Company

Commenter1:Chris Hobson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

[Please see Attachment B for a letter from Mary Jean Yon from the Solid Waste Section to the 

Florida Department of Environmental Protection]

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2011-0392-0239-10

Organization1:Earthjustice, et. al.

Commenter1:Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.2 7.1.2.1 7.1.2.2

Comment Excerpt Text:

IV. Adequacy of State Programs (NODA Section VIII)

A. Response to comments submitted by the Association of State and Territorial Soil Waste 

Management Officials

The comments submitted by the Association of State and Territorial Solid Waste Management 

Officials (“ASTSWMO”) [Footnote 46: See EPA-HQ-RCRA-2009-0640-8787.] in response to 

the EPA’s proposed rulemaking conclude that existing state waste management programs are 

sufficient to regulate CCR and, thus, that CCR need not be listed as a special waste or regulated 

under the RCRA subtitle C regulations. However, in defense of these conclusions, ASTSWMO 

offers unsupportable assumptions and presents an inaccurate picture of state regulatory programs 

and the environmental protections guaranteed thereunder.

ASTSWMO admits that, in many states, CCR surface impoundments are not subject to the 

requirements of solid waste management statutes and regulations. [Footnote 47: Id. at 24.] 

Nevertheless, and despite this admitted lack of regulation under state waste programs, 

ASTSWMO posits that informal coordination between other state agencies and waste program 
290

implementing agencies is “good evidence” that states would adopt national waste management 

standards for CCR in the event that such standards are promulgated. The comments point to no 

facts that would support such a conclusion.

ASTSWMO claims that the “State enforcing entities” in 42 out of 42 states have the authority to 

require remediation of CCR surface impoundments, in 43 out of 44 states have the authority to 

require repair and maintenance during operation, in 41 out of 43 states have the authority to 

require the closure of CCR surface impoundments, and in the “majority” of states have the 

authority to require minimum standards for impoundment design and engineering, leachate 

collection, gas collection, groundwater and leachate monitoring, financial assurance, post-closure 

care and maintenance, removal, and replacement of water supply. [Footnote 48: Id. at 25.] As an 

initial matter, whether or not a state has “the authority” to impose certain requirements on 

surface impoundment operators does not guarantee that a state ever will exercise that authority or 

that the public can depend on state regulation to protect against the threats posed by improper 

CCR disposal. Indeed, ASTSWMO cannot claim (and has not attempted to do so) that a majority 

of states require all of the aforementioned regulatory safeguards. We have reviewed the laws and 

regulations of the top ten CCR-generating states—PA, TX, OH, WV, KY, IN, FL, GA, NC, NM, 

and aside from Pennsylvania, none of these states require groundwater monitoring or leachate 

collection for all CCR surface impoundments, regardless of whether such impoundments are 

regulated by state solid waste management or other regulatory programs, e.g., water programs.

Moreover ASTSWMO’s survey results – for which the Association gives no details and does not 

identify which states or which “enforcing entities” are included in its count – are irrelevant to 

whether the disposal of CCR is adequately regulated under state waste management programs. 

The figures offered serve only to obscure the actual lack of CCR surface impoundment 

regulation across the nation. While other “enforcing entities” might regulate wastewater 

discharges from surface impoundments, for example, ASTSWMO offers no evidence that these 

entities require all of the safeguards necessary to ensure adequate protection of human health and

the environment from the dangers of CCR disposal. Such disposal must be regulated by waste 

management agencies that possess the relevant expertise regarding design standards, 

groundwater and leachate monitoring, and remediation. While ASTSWMO recommends, “EPA 

should continue to build upon existing State programs through use of the Subtitle D approach,” 

[Footnote 49: Id.] it fails to identify any solid waste management programs on which EPA could 

build.

The comments Earthjustice and others submitted in November 2010 in response to EPA’s 

proposed rulemaking (“Earthjustice 2010 Comments”) presented a thorough analysis of existing 

state regulations in 37 states, which states comprise over 98 percent of the coal ash generated 

nationally. [Footnote 50: One note of clarification, Attachment 4 to the Earthjustice 2010 

Comments indicates that Wisconsin exempts existing CCR landfills from groundwater 

monitoring requirements and mistakenly cites section 507.02 of the State’s Natural Resources 

regulations. Wisconsin only grandfathers CCR landfills from design standards, see WI ADC § 

NR 504.05(1), not from groundwater monitoring requirements. Whether groundwater monitoring 

will be required is a question left to the discretion of state regulators. See WI ADC s NR § 

507.04.] That analysis revealed that, contrary to ASTSWMO’s undocumented claims, the 

majority of states fail to require essential safeguards for CCR surface impoundments. 
291

Earthjustice analyzed state laws and regulations for the same safeguards specifically claimed by 

ASTSWMO to be required in the majority of states. Our findings are reiterated below, and 

citations to specific state laws are contained in Attachment 7 to these comments, which we 

submit again to support our legal analysis. [NOTE from ICF analyst: Attachment 7 provides info 

on landfills; Attachment 8 provides info on surface impoundments]

1. Requirement for composite liner

Of the 37 states we examined, only three required composite liners for all new CCR surface 

impoundments.

[See original comment for figure with data from Earthjustice 2010 Comments analysis of state 

laws and regulations]

2. Requirement for leachate collection system

Only five out of 37 states examined required leachate collection systems for all new CCR surface 

impoundments.

[See original comment for figure with data from Earthjustice 2010 Comments analysis of state 

laws and regulations]

3. Requirement for groundwater monitoring.

Only two out of the 37 states examined required groundwater monitoring during CCR surface 

impoundment operation. Of those two states, only Louisiana required groundwater monitoring 

for thirty years after unit closure.

[See original comment for figure with data from Earthjustice 2010 Comments analysis of state 

laws and regulations]

4. Requirement for financial assurance

Only 12 states out of the 37 states examined required financial assurance for CCR surface 

impoundments.

[See original comment for figure with data from Earthjustice 2010 Comments analysis of state 

laws and regulations]

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 
292

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0240-6

Organization1:Tri-State Generation and Transmission Association, Inc.

Commenter1:Barbara Walz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Adequacy of State Programs

EPA has provided a substantial amount of information in the NODA regarding the adequacy of 

CCR management programs implemented by the states. EPA has received comments by many of 

the individual state agencies that currently implement CCR management programs, as well as the 

Association of State and Territorial Solid Waste Management Officials (ASTSWMO) and the 

Environmental Council of States (ECOS). Each of these organizations have strongly expressed 

their support for a Subtitle D or D Prime program to manage CCRs and the need to have 

individual states involved in directing the management of those programs. EPA has also included 

in the NODA, a report from Earthjustice and others that criticize the programs implemented by 

states and the need for a Subtitle C CCR management program. The Earthjustice report is a 

shallow review of the states’ programs that doesn’t give adequate credit to reasonable programs 

based on unreasonable criteria.

Tri-State believes that the claims of the individual states and their representative organizations 

are reasonable assertions of well managed CCR regulatory programs to which EPA should give 

due consideration as it works to determine if and how best to regulate CCRs in the future. The 

comments of the states and their representative organizations send a strong message from EPA 

partner agencies that CCRs are effectively managed by most states’ programs, and that the states 

need to continue to manage CCR programs at the state level. In contrast, the Earthjustice report 

seems to exaggerate every possible option to a worst case scenario, depicting states as incapable 

of managing CCR disposal programs in a manner that is protective of public health and the 

environment. Earthjustice’s underlying assumption is that the only way an individual state CCR 

regulatory program could provide adequate protection for human health and the environment is if 
293

it adopts all of Earth justice’s ideal regulatory controls. States with a CCR management program 

that deviates from the Earthjustice ideal program in any respect are characterized as ineffective. 

Tri-State believes that this type of analysis is unreasonable and should not be considered by EPA 

in their decision making on the outcome of the proposed rule.

The Subtitle D approach for solid waste management has existed since 1979 without significant 

programmatic problems being identified by EPA. State programs typically meet or exceed the 40 

CFR Part 257 national standards for solid waste disposal facilities. In many respects, many state 

programs already meet or exceed much of the EPA proposed CCR national standards. Based 

upon the history of implementation of the solid waste management program by the states, upon 

adoption under Subtitle D, national CCR standards would be established quickly, uniformly, and 

nationwide, allowing states to continue enforcement under their state regulations with the ability 

to file citizen suits where state enforcement authority is limited. EPA should work with states to 

identify issues with the implementation of CCR program components, and provide support to 

those few states to enhance their ability to address Subtitle D or Subtitle D Prime program 

requirements so they can voluntarily enact authorities and adopt compatible state program 

requirements to provide for appropriate public health and welfare protections in a reasonable, 

uniform, and balanced approach.

Tri-State believes that the states where it owns or operates coal fired generation sources have 

appropriate mechanisms in place to provide for an adequate program to manage CCRs. The 

States of Colorado, Wyoming, New Mexico, and Arizona all have programs that meet or exceed 

the requirements of a Subtitle D program, and it is fully protective of public health and the 

environment

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.
294

Comment Number: EPA-HQ-RCRA-2011-0392-0253-1

Organization1:State of New Hampshire Department of Environmental Services

Commenter1:Michael Guilfoy

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

We specifically are commenting on the document by Earthjustice et. al., identified as Document 

ID No. EPA-HQ-RCRA-2009-0640-6315, hereinafter referred to as the Document. The 

Department wishes to correct numerous inaccuracies stated in the Document as it relates to CCR 

management in the State of New Hampshire. The Department will limit its comments to those 

inaccuracies and will not comment on summary tables or other conclusions drawn within the 

Document. 

New Hampshire is referred to 30 times within the Document. Of those 30 references, there are 18 

assertions that are incorrect. The inaccuracies are significant; giving the impression that CCR is 

either not regulated or inadequately regulated in New Hampshire. In fact, CCR landfills and 

surface impoundments are regulated in a Subtitle D-like manner in New Hampshire. 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

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

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0253-6

Organization1:State of New Hampshire Department of Environmental Services

Commenter1:Michael Guilfoy

Commenter Type: State Government

Classification: Substantive

Comment Category:
295

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In closing, the Department asserts that CCR is managed in a way protective of human health and 

the environment in New Hampshire. This assertion is based on New Hampshire’s regulations, 

which require the management of CCR similar to Subtitle D in almost all respects, itself proven 

to be protective. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0254-6

Organization1:Dominion Resources Services, Inc.

Commenter1:Pamela Faggert

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

IV. New analyses of state programs

Dominion has reviewed the additional data regarding the adequacy of state programs as a 

catalyst for management of CCRs as a Subtitle C hazardous waste. There is information (EPAHQ-RCRA-2009-0640-6315) available for comment that outlines in detail the variability in state 

CCR management practices. The argument is made that due to this variability and the absence of 

Federal assurance that CCRs are managed in a manner protective of the environment and human 

health, that these materials should be regulated as a Subtitle C hazardous waste. We do not 

understand nor do we agree with this conclusion. The presence of variability amongst state 

programs is not an argument to regulate these materials as a Subtitle C waste; this determination 
296

should be made on the characteristics of the materials and not on their management options. As 

stated in Dominion's comments to the original rulemaking proposal dated November 17, 2011, 

we support the "Subtitle D Prime" option, with modifications, as the best path for establishing a 

Federal program for regulation of CCRs. We further support allowing state regulatory agencies 

to administer the Federal Subtitle D program to avoid any duplication of Federal and state 

efforts.

Many states have strong and established solid waste programs that require the proper 

management of solid wastes, including CCRs, to prevent adverse impacts on human health and 

the environment. For example, Virginia's Waste Management Act is an EPA approved municipal 

solid waste (MSW) program (a RCRA Subtitle D program). Dominion is subject to the Virginia 

program, which includes stringent siting requirements for solid waste management units to 

protect critical environmental and societal receptors such as wetlands, surface waters, drinking 

water sources, residences, and healthcare facilities. There are also stringent design, operational, 

monitoring, reporting, and closure requirements that ensure proper protection of the environment 

throughout the lifetime of the solid waste management unit. As an example of state requirements 

that are protective of human health and the environment, we recently permitted a new CCR 

landfill at our Virginia City Hybrid Energy Center facility in the Town of St. Paul, Virginia. 

Under the Virginia Solid Waste Management regulations, Dominion designed and installed a 

best practice solid waste landfill with a multi-layer liner system and a leachate collection and 

monitoring system to ensure protection of groundwater and the surrounding environment. 

Dominion also installed a series of groundwater monitoring wells and an underdrain collection 

system to further ensure protection of groundwater. We are also required to implement a detailed 

Operations Plan that includes stringent inspection and monitoring requirements

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0255-1

Organization1:North Dakota Department of Health

Commenter1:Scott Radig
297

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The following are comments on rules proposed by the U.S. Environmental Protection Agency 

(EPA) to regulate coal combustion residues (CCRs) under the Resource Conservation and 

Recovery Act (RCRA) and the subsequent Notice of Data Availability. We are commenting 

specifically on incorrect information and misrepresentations about state CCR regulatory 

programs in comments submitted by Earthjustice, Environmental Integrity Project, Sierra Club, 

Natural Resources Defense Council, Southern Alliance for Clean Energy, Southern 

Environmental Law Center, and Physicians for Social Responsibility. This group will be 

collectively referred to as "Earthjustice" in this document. This same information on state 

programs is summarized in an Earthjustice publication titled State of Failure: How States Fail to 

Protect Our Health and Drinking Water From Toxic Coal Ash, which can be found on the web 

at: http://earthjustice.org/sites/default/files/StateofFailure.pdf. We also wish to discuss the 

effectiveness of our state program that has regulated CCRs for approximately the last 30 years. 

The state of North Dakota strongly believes coal combustion waste facilities merit appropriate 

regulation; however, the comments and report described above clearly misrepresent North 

Dakota's CCR regulatory program. In the early 1980s, the North Dakota Department of Health 

(NDDoH) began active regulation of coal combustion wastes, working with companies to close 

or upgrade facilities in unsuitable locations and actively worked with power companies to 

transition to dry fly ash management. The state required investigation of groundwater conditions 

and recognized there were impacts which necessitated action. The fact that there is public 

documentation in state records demonstrates that the state was taking action. Sites that have 

impacted groundwater have either been upgraded or closed and disposal operations moved to 

sites with better geology, engineering and monitoring. 

In the early 1990s, the North Dakota solid waste rules for CCRs were revised to follow the 

framework of the Federal Solid Waste Rules found in 40 CFR Parts 257 and 258, which include 

Location Standards and requirements for Facility Operation, Design, Groundwater Monitoring 

and Corrective Action, Closure/Postclosure Care and Financial Assurance. In addition to the 

NDDoH, the state permitting process includes the North Dakota Geological Survey and the 

North Dakota State Water Commission in reviewing site suitability of facilities and the North 

Dakota Public Service Commission if the proposed location is within a former mine area. The 

NDDoH also coordinates with other government agencies, local planning, zoning and health 

officials and includes opportunity for public comment. North Dakota facilities are routinely 

inspected and monitored. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 
298

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0255-10

Organization1:North Dakota Department of Health

Commenter1:Scott Radig

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.4.1 7.3.1

Comment Excerpt Text:

We believe our solid waste rules provide a sound framework for effective regulation. North 

Dakota works to ensure that each solid waste structure for CCRs is effectively regulated and 

constructed in accordance with generally accepted engineering and environmental standards for 

structural integrity and waste containment. If structures are found to be deficient, such structures 

will be corrected or closed. The existing North Dakota solid waste rules and permit process have 

been proven to be protective and provide the most expedient method for addressing 

environmental protection and mitigation issues. EPA should defer to state programs with proven 

track records where the state has better knowledge of local conditions. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 
299

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0255-11

Organization1:North Dakota Department of Health

Commenter1:Scott Radig

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 8.9

Comment Excerpt Text:

In conclusion, the NDDoH believes that Earthjustice's comments and report on the adequacy of 

state CCR regulatory programs is deeply flawed and contains numerous factual errors and 

misrepresentations. The comments and report also alleges several "new" groundwater damage 

cases in North Dakota, which we have already responded to as largely inaccurate and misleading. 

The authors may have done poor, cursory research, or alternatively, they may simply be 

attempting to advance their own agenda. Regardless, the comments and reports by Earthjustice, 

et al., are not accurate and should not be considered as valid by EPA in the consideration and 

promulgation of new CCR regulations. We request that EPA independently evaluate existing 

state programs as to their effectiveness in protecting public and environmental health. North 

Dakota is willing to assist you in this area and would welcome a visit to our Department to 

discuss the state solid waste and CCR regulations. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0255-12

Organization1:North Dakota Department of Health
300

Commenter1:Scott Radig

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

References: 

North Dakota Department of Health, "Coal Combustion Waste- North Dakota Regulatory 

Perspective", 2002; http:/ /wVvw.ndhealth. gov/wm/Publications/CoalCombustion Waste 

RegulatoryPerspective.pdf 

North Dakota Administrative Code, Article 33-20, Solid Waste Management and Land 

Protection, http://www.legis.nd.gov/information/acdata/html/33-20.html 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2011-0392-0255-2

Organization1:North Dakota Department of Health

Commenter1:Scott Radig

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.5.2 5.6.2

Comment Excerpt Text:

As shown in the public record, while past groundwater impacts have occurred from preregulation activities, no operating facility poses a significant risk to a downgradient public or 

private water supply system and no facility poses a significant threat to public safety. There have 

been no new groundwater impact cases from CCR facilities permitted after the current rules were 

promulgated in the early 1990s. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 
301

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0255-3

Organization1:North Dakota Department of Health

Commenter1:Scott Radig

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The comments and report described above submitted by Earthjustice, et al., clearly misrepresent 

North Dakota's CCR regulatory program. Their assertion is that if an option exists in state rules 

for an alternative then it is equivalent to not having a rule at all. This is simply incorrect and 

misleading. They make this assertion for requirements for groundwater monitoring, liner 

construction, leachate collection, dust control, runoff control, separation distance to the water 

table, financial assurance, final cover, and postclosure care and monitoring. Following is a 

review and explanation of these errors in Earthjustice's comment letter and report. Please note 

that under North Dakota solid waste management rules, CCRs are a "special waste." 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0259-1

Organization1:Environmental Integrity Project (EIP)
302

Commenter1:Eric Schaeffer

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Our comments respond to the submissions from state environmental agencies that were included 

in the NODA docket.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0259-3

Organization1:Environmental Integrity Project (EIP)

Commenter1:Eric Schaeffer

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

While states express a clear preference for regulation of coal ash under “Subtitle D” of the 

Resource Conservation and Recovery Act (RCRA), many of the comments recognized the need 

for federal standards, and made useful recommendations that we support. For example,

- A number of states recommended that EPA establish a schedule for phasing out the use of 

unlined surface impoundments, including Kentucky, Massachusetts, North Carolina, Tennessee, 

Virginia, and Washington. As explained in comments from Virginia’s Department of 

Environmental Quality, “Allowing unlined surface impoundments to continue operating 
303

indefinitely does not provide protection to human health and the environment.”

- Many states also supported post-closure care and financial assurance requirements, in part to 

assure that the taxpayers are not stuck with the tab for cleanup long after closure. 

EIP appreciates that some state and local agencies have tried to establish reasonable regulations 

for CCW disposal, and EPA ought to consider these efforts in development of its final rule. At 

the same time, the state comments help illustrate the confusion, conflicting standards, and gaps 

in coverage that make plain the need for federally enforceable standards for this huge waste 

stream. Our comments below respond to specific statements made in comments from state 

environmental agencies.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0262-2

Organization1:Florida Electric Power Coordinating Group, Inc.

Commenter1:James Vick

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

I. The Earthjustice Comments Regarding Florida’s Regulation of CCR Management are Wrong.

The Earthjustice Comments contain a number of inaccurate conclusions regarding Florida’s 

regulation of CCR landfills and surface impoundments. It is true that Florida’s regulations do not 

contain requirements specifically applicable to CCR landfills and surface impoundments. 

However, one cannot stop there and expect to have a comprehensive understanding of Florida’s 
304

regulatory program as it pertains to CCR management.

The Earthjustice Comments are wrong. Florida has effectively regulated the management and 

disposal of CCRs for over twenty years. Since 1973, power plants in Florida have been subject to 

comprehensive multi-media environmental regulations and permitting requirements. Pursuant to 

Chapter 403, Florida Statutes (“F.S.”), the management and disposal of CCRs at coal-fired 

power plants is authorized either by power plant site certification orders and conditions 

thereunder issued by Florida’s Siting Board (comprised of Florida’s Governor and Cabinet) 

under Part II of Chapter 403, F.S., or permits and authorizations issued by the Florida 

Department of Environmental Protection (“FDEP”) (e.g., industrial wastewater or NPDES 

permits, solid waste management facility permits). These regulatory authorizations generally 

draw from the requirements applicable to solid waste management facilities set forth in Chapter 

62- 701, Florida Administrative Code (“F.A.C.”), and include extensive groundwater monitoring 

and reporting, and other operational requirements such as dust controls, runon and run-off 

controls, and closure requirements. As EPA noted in the preamble to the Proposed CCR Rules, 

Florida’s “PPSA certification contains the same substantive requirements as would otherwise be 

imposed by other permits.” 75 Fed. Reg. 35152 (June 21, 2010). A full discussion of Florida’s 

regulatory program and how it has been applied to CCR landfills and surface impoundments is 

set forth in the FCG’s comments to EPA’s Proposed Rulemaking for the Identification and 

Listing of Special Wastes: Disposal of Coal Combustion Residuals from Electric Utilities 

(“Proposed CCR Rules”). EPA Docket No. EPA-HQ-RCRA-2009-0640-10498 (“FCG 

Comments”).

If the self-proclaimed “comprehensive analysis” set forth in the Earthjustice Comments contains 

fundamental errors in relation to Florida’s regulatory program, it is reasonable to conclude that 

its review of other state programs is similarly flawed. Other states, like Florida, may not have 

specific regulations for the management of CCRs. However, to assume that such units are not 

adequately regulated on this fact alone is naive. Such states, like Florida, may impose liner and 

groundwater 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 approved Subtitle D program are typically applied to CCR landfills and

surface impoundments as part of the PPSA certification process and conditions of certification 

issued thereunder. See 75 Fed. Reg. 35152. Therefore, the actual number of states that are 

imposing liner and groundwater monitoring requirements likely is much higher than what is 

represented in the Earthjustice Comments.

a. CCR Landfills and Surface Impoundments in Florida are Subject to Extensive Groundwater 

Monitoring.

A prime example of the inaccuracy of the Earthjustice Comments is the conclusion that 

groundwater monitoring of CCR landfills and surface impoundments is not required in Florida. 

The Earthjustice Comments are wrong. All facilities with CCR landfills and surface 

impoundments in Florida have extensive groundwater monitoring systems in place that are 

subject to routine monitoring and reporting requirements, and include upgradient, downgradient 

and compliance wells. As noted above, these requirements are imposed through power plant site 

certification orders and conditions thereunder issued by Florida’s Siting Board under Part II of 
305

Chapter 403, F.S., or permits and authorizations issued by FDEP. As a result, there have been no 

reported off-site impacts to drinking water resources in Florida associated with the operation of 

CCR landfills or surface impoundments.

b. Liner Systems and Leachate Collection Systems are Increasingly Required for CCR Landfills 

and Surface Impoundments.

Florida’s Solid Waste Management Rule, Chapter 62-701, F.A.C., addresses the management of 

all solid waste. In 1994, FDEP clarified that: (1) Class I landfill (i.e., municipal solid waste 

landfill) standards would not automatically apply to industrial waste (such as CCRs); (2) 

industrial waste disposal facilities would continue to be evaluated on a case-by-case basis; and 

(3) FDEP anticipated initiating rulemaking to address industrial waste disposal.2 See Letter from 

FDEP to Thomas DeRose (Oct. 10, 1994) and Letter from FDEP to William Preston (Feb. 5, 

1996), Attachment “B.” Thus, design and operational criteria for new industrial waste disposal 

facilities, such as CCR landfills, are established on a case-by-case basis; though FDEP staff 

typically imposes criteria consistent with Florida’s Solid Waste Management Rule. While there 

currently is no specific regulatory requirement for CCR landfills to be lined, new or expanded 

landfills have been constructed with liner and reachate collection systems. Several FCG 

members have constructed, or are currently in the process of constructing, new CCR landfills or 

expanding existing CCR landfills with liners, leachate collection systems, and augmented 

groundwater monitoring systems consistent with the requirements applicable to municipal solid 

waste landfills. Many of the liners that have been installed or will be installed are double HDPE

geomembrane liners [Footnote 3: Florida’s double liner system is different from EPA’s double 

liner system requirements for hazardous waste landfills, required by RCRA § 3004(o)(4)(A), and 

detailed in 40 C.F.R. sections 264.301 (c) and 264.302.] that were approved by EPA as part of its 

overall approval of Florida’s solid waste program in 1994. FDEP’s evaluation of these liner 

systems over the years has shown that they are more protective of the environment than the 

composite liner system set forth in the Proposed CCR Rules.

c. Dust Controls are Imposed.

In addition to facility-specific requirements that may be imposed through power plant site 

certification orders and conditions, Florida’s air rules regulate unconfined particulate matter 

(aka, fugitive dust), and impose and implement the PM10 and PM2.5 National Ambient Air 

Quality Standards (NAAQS). Specifically, Florida’s Stationary Source - Emission Standards 

Rule, Chapter 62-296, F.A.C., limits visible emissions from any activity to 20 percent opacity in 

Rule 62-296.320(4)(b), and requires (and provides examples of) reasonable precautions to 

prevent emissions of unconfined particulate matter in Rule 62-296.320(4)(c). Florida’s Title V 

Operating Permit Program, Chapter 62-213, F.A.C., implements these provisions, which are 

included in every Title V permit issued in Florida. Additionally, Chapters 62-4,62-210 and 62-

212, F.A.C., prohibit FDEP from issuing any air permit that would cause or contribute to a 

violation of any NAAQS.

d. Florida Effectively Regulates CCR Landfills and Surface Impoundments.

The rules and regulations referenced above demonstrate that, while FDEP currently does not 
306

have a separate regulatory program specifically addressing CCR management and disposal, 

Florida does effectively regulate the disposal of CCRs under its existing statutory and regulatory 

framework. In its comments to the Proposed CCR Rules, dated November 18, 2010, FDEP 

similarly asserted that CCRs are being appropriately regulated under existing state laws. EPA 

Docket No. EPA-HQ-RCRA-2009-0640-6846. This fact is demonstrated by FDEP’s decadeslong experience in comprehensively regulating solid waste activities in the state, its EPAapproved municipal solid waste landfill program, and its implementation of a groundwater 

protection program that has been in place for more than 25 years. The success of Florida’s 

regulatory program is exemplified by the fact that there have been no reported off-site impacts to 

drinking water resources in Florida associated with the operation of CCR landfills or surface 

impoundments. For these reasons, the FCG strongly opposes additional regulation of CCR 

disposal by EPA which is unnecessary and unwarranted in Florida

Response: The Agency acknowledges and appreciates the comment. The commenter is

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0262-6

Organization1:Florida Electric Power Coordinating Group, Inc.

Commenter1:James Vick

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

ATTACHMENT B

[See original comment for Attachment B: Letters from Deparment of Environmental Protection]

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 
307

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0263-1

Organization1:South Carolina Department of Health and Environmental Control

Commenter1:Daphne Neel

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Specifically, the Department is writing to respond to information contained in Comments of 

EarthJustice, Environmental Integrity Project, Sierra Club, Natural Resources Defense council, 

Southern Alliance for Clean Energy, Southern Environmental Law Center, Physicians for Social 

Responsibility ("EJ Comments" or "Comments") Docket ID No. EPA-HQ-RCRA-2009. The 

Department is concerned about the accuracy of certain information in the Comments about South 

Carolina's regulation of CCRs. The current South Carolina regulatory framework, as described in 

more detail below, should be evaluated as a proper measure of state program adequacy.

"State Regulations are Grossly Deficient in the Majority of States"

The basic premise of the EJ Comments is that "most states fail to require essential safeguards for 

landfills and surface impoundments disposing of coal ash, including liners, groundwater 

monitoring, leachate collection, dust controls and financial assurance" and that "[T]hese 

regulatory failures have left the public exposed to pollution that is dangerous and illegal." (pp. 3-

4). This is an inaccurate overgeneralization of the states' regulatory programs, and an 

exaggerated statement of the potential threat to the public's health and the environment. To the 

contrary, South Carolina has a comprehensive solid waste management program that regulates 

CCR landfills, and has several other programs that address the management of surface 

impoundments. Combined, they provide a protective regulatory framework for the management 

of CCRs in South Carolina.
308

South Carolina currently regulates 12 coal-burning power plants that manage CCRs through the 

use of landfills, surface impoundments, and beneficial use determinations. As the public health 

and environmental protection agency for South Carolina, the Department utilizes a number of

state and federal authorities to ensure the proper management of CCRs. These include: the South 

Carolina Solid Waste Policy and Management Act and regulations; the South Carolina Pollution 

Control Act; and the South Carolina Hazardous Waste Management Act. These authorities are 

described in greater detail in comments submitted by South Carolina in response to EPA's June 

21, 2010 Federal Register Notice and Request for Comments on the Proposed Rule (Docket I.D. 

No.: EPA-HQ-RCRA-2009-0640).

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0263-10

Organization1:South Carolina Department of Health and Environmental Control

Commenter1:Daphne Neel

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

We recognize the difficulty of any effort to accurately summarize state activity on a subject as 

complex as the management of CCRs. While such a summary may provide a snapshot, it does 

not fully account for the breadth or depth of a state's regulatory program. It is inaccurate to 

collectively portray states' activities as inadequate, deficient, or "grossly deficient" without 

having the benefit of a deeper understanding of every state's applicable statutes, regulations, 

policies, and practice. Likewise, demonstrated deficiencies of one or a few states should not 

justify preempting state authorities to regulate CCRs.
309

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0265-10

Organization1:Department of Environmental Quality, State of Wyoming

Commenter1:John Corra

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In comments submitted to EPA November 19, 2010, Earthjustice, Environmental Integrity 

Project, Sierra Club, Natural Resources Defense Council, Southern Alliance for Clean Energy, 

Southern Environmental Law Center, and Physicians for Social Responsibility concluded that 

state programs do not and cannot adequately protect human health and the environment from the 

dangers posed by CCR disposal. The Wyoming Department of Environmental Quality strongly 

disagrees with this conclusion and much of the evidence these groups cite to support their 

conclusion. 

Rather than submit a lengthy analysis of each of the assertions made by Earthjustice, et al, 

Wyoming will address these assertions in general and specifically as they apply to Wyoming 

regulations. Overall the assertions are broad and fail to recognize that it is absolutely appropriate 

to take site specific factors into consideration when determining which measures are needed to 

protect human health and the environment at a given disposal site.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to 

Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule 

for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of 

the preamble for a presentation and discussion of the technical standards the Agency is promulgating in 
310

this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on 

how EPA expect states to incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to comments 

that pertain exclusively to that issue. However EPA has responded to significant comments that relate 

to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is 

relying on the damage cases to support certain aspects of the technical requirements, EPA has 

responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, 

however, responded to many comments on state programs because the Agency has made no final 

conclusions on the adequacy of those programs and is not relying on state programs to support any of 

the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0266-1

Organization1:Department of Environment and Conservation, State of Tennessee

Commenter1:Garey Mabry

Commenter Type: State Government

Classification: Non-substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As our request for a review extension on the comment period was denied, we have not had the 

opportunity to fully analyze and respond to EPA's request for comments on the 168 documents 

posted on EPA's docket website associated with this notice. Our staff had been completing 

comments on EPA's Definition of Solid Waste, July 22, 2011 Federal Register Notice, Docket ID 

No. EPA-HQ-RCRA-2010-0742 and provided those comments on October 19, 2011. We would 

like to officially document that due to the lack of an adequate period to review an extensive 

amount of complex data, we sincerely regret that we are unable to provide comments on this 

issue by the prescribed deadline of today's date.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2011-0392-0271-1

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Ed Thamke

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In these comments, ASTSWMO directly addresses the criticism of State programs for the 

management of coal combustion residuals (CCR) in the Earthjustice Comments. However, there 

is simply not enough time to analyze and comment on every claim that Earthjustice makes about 

each aspect of individual State programs. Nor is there time to assess the validity of Earthjustice’s 
311

reliance on the reports and studies that are cited to support claims made in their Comments. 

Before addressing some of the specifics, there are several recurring themes in the Earthjustice 

Comments that warrant notice first. The problems outlined below are important because they cast 

a shadow of doubt over the reliability of the Comments. The following themes are pervasive 

enough that the end user of the information presented in Earthjustice’s Comments should closely 

scrutinize it, keeping in mind the deficiencies described below. 

1. A statement based on a cited reference is incorrect: 

Earthjustice Comment: 

“The 2010 RIA, prepared by the EPA’s Office of Resource Conservation & Recovery ... 

updated the 2005 DPRA Report’s examination of the regulatory programs of 34 states.” 

[Footnote 1: Earthjustice Comments, page 18] 

Fact Check: 

The 2005 data is not updated. The tables identifying the State regulatory requirements are 

identical in the two reports. 

The tables are identified as Exhibits 2-1 through 2-3 in the 2005 report and Exhibits E-1 through 

E-4 in the 2010 report. 

2. A conclusion that Earthjustice draws from a referenced report contradicts the conclusion in the 

report itself: 

Earthjustice Comment: 

“As EPA’s own reports have revealed, the discretion given to state regulators and the variances 

that they subsequently grant may significantly compromise the safety of a waste disposal unit.” 

[Footnote 2: Earthjustice Comments, page 23] 

Fact Check: 

The DOE/EPA Report expresses confidence in the exercise of discretion: 

“A detailed analysis of variance requests in 65 permits in 16 states indicates that state regulators 

have not issued variances unless a sound scientific basis supports the request.” [Footnote 3: 

Doe/EPA Report, page 67] 

3. The content in a cited reference is exaggerated: 

Earthjustice Comment: 

“In its May 2000 Regulatory Determination, EPA expressed significant concern about the lack of 
312

adequate state regulation of CCR disposal.” [Footnote 4: Earthjustice Comments, page 17] Citing 

to the Notice of Regulatory Determination on Wastes from the Combustion of Fossil Fuels (May 

2000) [Footnote 5: 65 FR 32214, 32218] 

Fact Check: 

The only related comment at the cited page in the reference does not express a significant 

concern: 

“Our ongoing review will include consideration of: .... (3) the adequacy of existing state and/or 

federal regulation of these wastes.” [Footnote 6: 65 FR 32214, 32218] 

Furthermore, the following statement on page 32217, the page previous to the page cited in the

2000 Determination, contradicts the Earthjustice description of the referenced document: 

“given most of the states’ current regulatory capabilities and the evidence that basic controls are 

increasingly being put in place by the states...” [Footnote 7: 65 FR 32214, 32217] 

4. Earthjustice interpretation of information is too literal: 

Earthjustice Comment: 

“For landfills, the 2006 DOE/EPA Report found that: 

-No state surveyed requires a composite liner for all coal ash landfills.” [Footnote 8: Earthjustice 

Comments, page 19] 

Fact Check: 

The DOE/EPA Report lists States with a composite liner requirement. For example: 

“Missouri - Utility waste landfill: Composite or clay liner meeting required thickness, 

compaction percentage, and hydraulic conductivity specifications.” [Footnote 9: DOE/EPA 

Report, Table A.6., page 29] 

In Earthjustice’s evaluation of program requirements, anything that is not mandatory is not 

considered a requirement. Because Missouri allows an alternative to a composite liner if 

technical specifications are met, it is considered a State that does not have a composite liner 

requirement. 

5. Earthjustice is inconsistent in the way that certain standards are used to form conclusions: 

Earthjustice Comments: 

1. “The 2006 DOE/EPA Report’s conclusion that ‘improved disposal unit management practices 

and state application of environmental regulations appear to be occurring’ is based largely on .... 

a narrow sample of permitted new or expanded units in 11 states.” [Footnote 10: Earthjustice 
313

Comments, page 21] 

2. The 2006 DOE/EPA reviewed permit variances in 9 States which Earthjustice finds sufficient 

to “reveal that when state law gives regulators discretion to waive basic safeguards such as liners 

and cover, the states use that discretion liberally.” [Footnote 11: Earthjustice Comments, page 

23] 

Fact Check: 

In the first example, Earthjustice criticized the authors’ positive finding based on a review of a 

small number of States (11). In the second example, Earthjustice draws a sweeping negative 

conclusion based on a review of nine States. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0271-11

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Ed Thamke

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Statutory and Regulatory Revisions 

Recently, States have advanced the regulation of CCR by statute or regulations. The Earthjustice 

State Review [from Earthjustice Comments “Earthjustice 2010 37-State Review”] does not 

account for these developments, some of which occurred after its Comments were submitted. 
314

Some of the States that have adopted changes are identified below. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0271-12

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Ed Thamke

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.4.1

Comment Excerpt Text:

Earthjustice Prediction of States That Will Not Adopt Subtitle D Criteria Failed 

In an elaborate evaluation, based in part on EPA’s analysis in the 2010 RIA, Earthjustice makes 

predictions about the likelihood of States adopting EPA’s June 21, 2010 Subtitle D proposal. The 

analysis is so convoluted and subjective that it is difficult to analyze. However, a critique of its 

method is not necessary, because the conclusions it draws about States have already been proved 

inaccurate. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 
315

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0271-13

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Ed Thamke

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Statutory Revisions 

Alabama is at the top of the list of States that Earthjustice predicts are not expected to Implement 

Subtitle D requirements. Alabama is the State that Earthjustice typically uses to characterize the 

deficiencies in State CCR programs. Earthjustice notes repeatedly in their comments (at least six 

times [Footnote 41: Repetitive references to Alabama’s lack of regulation of coal ash in the 

Earthjustice Comments. Citations from Docket # EPA–HQ–RCRA–2009– 0640–6315.: Pg. 19 -

excludes all CCR from its definition of solid waste; thus, solid waste permits are not required for 

CCR disposal; Pg. 22 - excluded completely from regulation; Pg. 25 - exempt coal ash 

completely from regulation as a solid waste, leaving the disposal of CCR virtually unregulated; 

Pg. 25 - completely exempt all or most of coal ash disposal from regulation; Pg. 26 - exclude 

CCR from the definition of solid waste; and Pg. 49 - no regulations whatsoever that apply to coal 

ash.] ) that Alabama law exempts CCR from regulation. The implication is that Alabama 

exemplifies the States’ reluctance to regulate CCR. Earthjustice recently identified Alabama as 

one of the 12 Most Dangerous States “representing the worst of the worst when it comes to coalash disposal.” [Footnote 42: “State of Failure: How states fail to protect our health and drinking 

water from toxic coal ash.” Earthjustice and Appalachian Mountain Advocates, August 17, 2011] 

In the report, which was published in August 2011, Earthjustice failed to acknowledge, or was 

unaware of, a significant change in Alabama’s law governing the regulation of CCR disposal. 

On May 25, 2011, Governor Robert Bentley signed a law that removes the exemption for coal 

combustion by-products from regulation as a solid waste. [Footnote 43: Alabama Act 2011-258, 

HB50, amends Sections 22-27-2 and 22-27-3, Code of Alabama 1975, to remove an existing 
316

exemption from regulation for fly ash waste, bottom ash waste, boiler slag waste, and flue gas 

emission control wastes which result primarily from the combustion of coal or other fossil fuels 

at electric generating plants. The act also authorizes the regulation of these substances as a solid 

waste and, to the extent permissible under federal law, to allow beneficial uses of coal 

combustion by-products as an alternative to disposal as part of any adopted state program. 

EFFECTIVE DATE: May 25, 2011 http://e-lobbyist.com/gaits/text/286329] Not only did 

Alabama elect to regulate coal ash as a solid waste effective immediately, it specifically 

authorized the future adoption and implementation of a federal regulatory program for disposal 

of CCR: 

"Upon the adoption and implementation of a federal regulatory program to govern the disposal 

of coal combustion by-products pursuant in whole or in part to Subtitle D of the Solid Waste 

Disposal Act, 42 U.S.C. §6941 et seq., the department is authorized to develop and adopt rules as 

necessary to implement a state regulatory program consistent with the federal requirements. 

Until such federal program requirements shall take effect, the disposal of coal combustion byproducts shall be subject to the applicable requirements of this article."

Earthjustice’s recent portrayal of Alabama as the worst State in its State of Failure report is 

unfounded, as is the characterization of States as being incapable and unwilling to regulate CCRs 

in a safe manner. Furthermore, it raises doubts about Earthjustice’s ability to evaluate the 

progress that States have made improving their CCR programs. 

Regulatory Revisions 

Maryland - On December 1, 2008, Maryland adopted a new Chapter to its regulations governing 

solid waste disposal. The Chapter, entitled Management of Coal Combustion Byproducts, 

governs the disposal of and prescribes requirements for permitting, construction, monitoring, etc. 

The regulation establishes specific criteria for granting a variance: 

"The Department may grant a variance if the basis for the variance application is demonstrated to 

the satisfaction of the Department to: 

(1) Provide equal or greater protection to prevent a release or discharge of coal combustion 

byproducts to the environment as would be provided by compliance with the regulation for 

which a variance is requested; 

(2) Conserve and protect the public health, the natural resources, and the environment of the 

State; and 

(3) Control pollution to at least the same extent as would be obtained by compliance with the 

regulation for which a variance is requested." [Footnote 44: COMAR 26.04.10.07] 

Pennsylvania – On December 11, 2010, Pennsylvania adopted comprehensive regulations for the 

storage, disposal and beneficial use of CCR. It is worth noting that the Background to the Final 

Rulemaking [Footnote 45: http://www.pabulletin.com/secure/data/vol40/40-50/2359.html] 

indicates that “the Department ... had several meetings with citizens representing Earthjustice 

and the Environmental Integrity Project.” 
317

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0271-14

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Ed Thamke

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.4.1

Comment Excerpt Text:

Iowa - Iowa was in the process of developing a proposal to regulate coal ash disposal when EPA 

published the proposed rule on June 21, 2010. Consequently, Iowa postponed its rulemaking 

pending the outcome of the EPA regulatory proposal. [Footnote 46: E-mail correspondence with 

Brian Tormey, Chief, Land Quality Bureau, Iowa Department of Natural Resources, November 

10, 2011] 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 
318

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0271-16

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Ed Thamke

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.2.2

Comment Excerpt Text:

COMMENT REGARDING THE BRIEF COMMENT PERIOD 

The decision about federal regulation of CCR will have far-reaching implications for State waste 

management programs. ASTSWMO has used the limited time of the comment period for the 

NODA to focus our response on one aspect, the adequacy of State programs, given the critical 

importance of this issue to our members. Our lack of comments regarding other aspects of the 

NODA, such as beneficial use, should not be interpreted as a lack of interest in those areas. On 

the contrary, the areas on which the NODA invited comment are of broad interest to our 

members. ASTSWMO was not able to provide comments as complete and comprehensive as we 

would have liked in light of the 30-day comment period. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.
319

Comment Number: EPA-HQ-RCRA-2011-0392-0271-17

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Ed Thamke

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

CONCLUSIONS 

The Earthjustice Comments drastically underestimate the adequacy of State coal combustion 

residuals management programs in two ways. The manner in which Earthjustice uses 

information from reports and studies casts a shadow of doubt over the reliability of their 

Comments. The recurring themes in their comments include: drawing conclusions that contradict 

the conclusions in the reports themselves; exaggerating the content in a cited reference; 

interpreting referenced information incorrectly; and interpreting referenced information too 

literally. As a result, information about State programs is interpreted in a way that makes the 

programs appear to be less effective than actually reported. Another significant issue is that the 

methods that Earthjustice uses to evaluate State programs are unconventional. It is not obvious 

and it requires a lot of reading-between-the-lines to understand that Earthjustice’s definition of a 

“program requirement” is one that is mandatory and does not allow for variances. Earthjustice’s 

interpretation is contrary to the statute that governs disposal - the Resource Conservation and 

Recovery Act –which provides in Section 3004(x) that specific characteristics of waste of 

disposal sites may be taken into account to modify certain requirements, such as liners and 

groundwater monitoring. The Earthjustice review of State programs did not include the many 

State management practices that extend beyond what is explicitly specified in State regulations. 

ASTSWMO places a very high priority on our relationship with our Federal EPA partners and 

we have always valued opportunities to interact and achieve solutions that are in the best interest 

of United States citizens for whom we serve. Few things have galvanized our organization as this 

proposed rulemaking. The notion that somehow States are incapable of performing our statutory 

responsibilities to protect human health and environment is inaccurate and, frankly, insulting. 

State regulators live, work, and play where authority is applied and we not only have 

professional and ethical interests, but are morally vested in our land and communities. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 
320

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0271-2

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Ed Thamke

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Earthjustice Comments vs. the Referenced DOE/EPA Report 

As noted previously, there is simply not enough time to perform a comprehensive critical 

analysis of Earthjustice’s comments. Five substantive problems were identified in a single 

paragraph (below) in which Earthjustice attempted to rely upon information in a technical report 

to substantiate its claims. This suggests that every paragraph in Earthjustice’s comments should 

be scrutinized to be certain that its claims hold up. However, to do so for a 102-page Comment 

would require more time than was allotted for this response. 

Side-by-Side Comparison of one paragraph (below) from the Earthjustice Comments vs. the 

Referenced DOE/EPA Report 

Paragraph from Page 18-19 Earthjustice Comments: 

“The 2006 DOE/EPA Report, which reviewed in detail the regulatory frameworks of 11 states, 

also documented continuing substantial deficiencies in state regulation of CCR management. The 

report found that between 1999 and 2005 none of the states surveyed tightened regulatory 

controls on CCR landfill disposal; that is, no state added specific requirements governing liners, 

groundwater monitoring, leachate collection, closure and postclosure, siting, and financial 

assurance since the 2000 Regulatory Determination. In addition, the report identified four states 

(Alabama, Florida, Illinois, and Texas) that had relaxed certain CCR disposal controls since 

1988. According to the EPA, these four states collectively were responsible for generating 26.4 

million tons of CCR, approximately 19% of total CCR generation in 2005.” 
321

Earth Justice Comments: “The 2006 DOE/EPA Report ...documented continuing substantial 

deficiencies in state regulation of CCR management.” [Footnote 12: Earthjustice Comments, 

page 18] 

DOE/EPA Report (page from DOD/EPA Report): “the absence of details ... in most States 

reviewed in the 1999 RTC ... made it difficult to ascertain whether regulatory changes occurred 

... for the majority of the States.” “it was possible to confirm that, during the period between 

data collection for the 1988 RTC and 2005, the regulation of landfill liners, leachate collection 

systems, and groundwater monitoring tightened in most States reviewed.” [Footnote 13: 

DOE/EPA Report, page A-63] 

Earth Justice Comments: “reviewed in detail the regulatory frameworks of 11 States.” [Footnote 

14: Earthjustice Comments, page 18] 

DOE/EPA Report (page from DOD/EPA Report): Detailed review was performed for only 5 

States [Footnote 15: DOE/EPA Report, Table 18, page 41] 

Earth Justice Comments: “The report found that between 1999 and 2005 none of the states 

surveyed tightened regulatory controls on CCR landfill disposal.” [Footnote 16: Earthjustice 

Comments, page 18] 

DOE/EPA Report (page from DOD/EPA Report): “For the period between collection of data for 

the 1999 RTC and 2005, the change observed was neutral for either all or all but one State.” 

[Footnote 17: DOE/EPA Report, page 48] Wisconsin tightened the regulatory designation of 

CCW and Missouri tightened solid waste permitting. [Footnote 18: DOE/EPA Report, Table 22, 

page 49] 

Earth Justice Comments: “no state added specific requirements governing liners, groundwater 

monitoring, leachate collection, closure and postclosure, siting, and financial assurance.” 

[Footnote 19: Earthjustice Comments, page 18] 

DOE/EPA Report (page from DOD/EPA Report): Two states added requirements not listed in 

the statement (regulatory determination of CCW and permitting); five States were not evaluated 

for closure and postclosure, siting, and financial assurance requirements. [Footnote 20: 

DOE/EPA Report, Table 18, page 41 and Table 22, page 49] 

Earth Justice Comments: The four states that relaxed controls “were responsible for generating 

26.4 million tons of CCR, approximately 19% of the total CCR generated in 2005.” [Footnote 

21: Earthjustice Comments, page 19] 

DOE/EPA Report (page from DOD/EPA Report): The eight States that tightened controls were 

responsible for generating 62 million tons of CCR, approximately 44% of the total CCR 

generated in 2005. [Footnote 22: DOE/EPA Report, Table 22, page 49 and 2010 RIA, Exhibit 

3D] 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 
322

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0271-3

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Ed Thamke

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Earthjustice’s Reliance on Previous EPA Reports is Misplaced 

Earthjustice relies on three EPA reports that describe aspects of State CCR disposal programs to 

document what it characterizes as “Substantial Gaps Persisting in State Regulatory Programs.” 

However, the conclusions drawn about State programs in pages 17-21 of the Earthjustice 

Comments are not supported by the information in the cited reports. 

The first report is a joint study conducted by the Department of Energy (DOE) and the 

Environmental Protection Agency (EPA) to determine what progress had been made in CCR 

management practices since EPA’s 1999 Report to Congress (hereinafter, DOE/EPA Report 

[Footnote 23: Dep’t of Energy and EPA, Coal Combustion Waste Management at Landfills and 

Surface Impoundments, 1994-2004 (Aug. 2006), available at www.regulations.gov (Document 

ID No. EPA-HQ-RCRA-2006-0796-0002)]). Both industry practices and State regulatory 

requirements were evaluated. The State regulatory evaluation was based on information collected 

in 2005. 

The second is a report prepared by DPRA Incorporated in 2005 (hereinafter, DPRA Report 

[Footnote 24: DPRA Inc., Estimation of Costs for Regulating Fossil Fuel Combustion Ash 

Management at Large Electric Utilities Under Part 258 (Nov. 30, 2005), available at 

www.regulations.gov (Document ID No. EPA-HQ-RCRA-2006-0796-0469)]) to perform a cost 

estimate for regulatory proposals for the management of CCR based on Part 258 which were 

under consideration by EPA. State regulations for the top 34 coal usage States were reviewed to 

determine what groundwater monitoring and environmental control requirements for CCR 
323

landfills and surface impoundments were in place. The existing State regulatory requirements 

were compared with the regulatory requirements in EPA’s proposal to determine the potential 

cost of implementing the proposed regulatory scheme. 

The third report is the 2010 Regulatory Impact Analysis prepared by EPA (hereinafter, 2010 RIA 

[Footnote 25: Office of Res. Conservation & Recovery, U.S. EPA, Regulatory Impact Analysis 

for EPA’s Proposed RCRA Regulation of Coal Combustion Residues (CCR) Generated by the 

Electric Utility Industry (Doc. No. EPA-HQ-RCRA- 2009-0640-0003) (Apr. 2010), available at 

www.regulations.gov]) to evaluate the expected regulatory compliance costs, economic and 

environmental benefits, and potential impact on CCR beneficial use of EPA’s June 21, 2010 

proposed regulation of coal combustion residual (CCR) disposal by coal-fired electric utility 

plants. The analysis was based on the 2005 data collection about State regulatory program 

requirements that was used in the DPRA Report. 

None of the reports can be said to represent current “persisting” gaps because the information 

characterizing State programs was gathered 6 years ago or more. It is not accurate to assume that 

State CCR regulatory programs have been stagnant for such a long period of time. If anything, 

the 2006 DOE/EPA report documented improvements in State programs over the study period: 

“Therefore, from these data it was possible to confirm that, during the period between data 

collection for the 1988 RTC and 2005, the regulation of landfill liners, leachate collection 

systems, and groundwater monitoring tightened in most States reviewed.” [Footnote 26: 

DOE/EPA Report, page 48] 

Earthjustice also claims that a “finding” in the reports is “that state regulations routinely lack 

requirements for essential safeguards for the disposal of CCR in landfills and surface 

impoundments.” [Footnote 27: Earthjustice Comments, page 18] This suggests that the purpose 

of the reports was to evaluate whether the State regulations provided “essential safeguards.” 

Neither report contained any subjective review or analysis of the regulations. The findings in 

both reports were limited to conclusions about the cost of regulatory proposals or changes in the 

regulation and implementation of CCR disposal requirements. None of the reports drew any 

conclusions comparable to that which is claimed by Earthjustice. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 
324

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0271-4

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Ed Thamke

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.2.2

Comment Excerpt Text:

2010 Regulatory Impact Analysis Is Not an “Updated” Reflection of State Regulatory Programs 

Earthjustice mistakenly claims that the 2010 RIA updates the examination of State regulatory 

programs that was performed in the 2005 regulatory cost estimate (DPRA Report): 

“The 2010 RIA, prepared by the EPA’s Office of Resource Conservation & Recovery, illustrates 

a shocking absence of CCR disposal requirements across the nation. The report updated the 2005 

DPRA Report’s examination of the regulatory programs of 34 states.” [Footnote 28: Earthjustice 

Comments, page 18] 

If Earthjustice was correct in saying that the 2005 data was updated for the 2010 report, it would 

indeed show an absence of improvements in CCR programs. However, the data was not updated 

for the 2010 report. Both the 2005 and 2010 reports contain tables listing the minimum State 

groundwater monitoring criteria and minimum State engineering controls for CCR landfills and 

surface impoundments. The data presented is exactly the same in the 2005 report (Exhibits 2-1 

through 2-3) and the 2010 report (Exhibits E-1 through E-4). In other words, the characterization 

of State programs was not updated and Earthjustice relies upon outdated information to 

characterize the current state of regulatory programs. It is not likely that Earthjustice deliberately 

misrepresented the facts. But failing to accurately identify the nature of the data that it relied 

upon weighs heavily against the credibility of the Earthjustice Comments. 

Additionally, the data collection is inaccurately portrayed as a survey, which might suggest a 

greater likelihood that the information was accurate if provided by the States. In fact, the 

information is based on a 3rd party review of State regulations, which alone may not accurately 

reflect program requirements, such as permit conditions. [Footnote 29: DPRA Report, page 2-2] 

Compounding the problem is the fact that Earthjustice’s summary of the raw data does not match 

the data itself. For example, Earthjustice reports that “85 percent of the states surveyed do not 

require groundwater monitoring and leachate collection at all surface impoundments (both new 

and existing).” [Footnote 30: Earthjustice Comments, page 18] The implication is that only 15 

percent of States require groundwater monitoring and leachate collection at surface 
325

impoundments. However, according to the reported data, 50 percent of the States required 

groundwater monitoring for surface impoundments and 41 percent required leachate collection. 

The Earthjustice summary of the raw data underestimates the adequacy of State programs by a 

significant margin. 

Contrary to Earthjustice’s claim, the five year span between the 2005 and 2010 EPA reports 

cannot be used to characterize stagnancy in State CCR disposal programs because the data used 

in both reports are from the same point in time. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0271-5

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Ed Thamke

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

2006 DOE/EPA Report Documents More Improvements Than Deficiencies in State Programs 

The third report that Earthjustice includes among the EPA analyses claimed to “reveal that states 

have not improved their regulations to close these gaps over the last decade” [Footnote 31: 

Earthjustice Comments, page 4] is the 2006 DOE/EPA report. It is correct to characterize this 

report as an analysis of State program requirements over time and can rightly be used to evaluate 

the progress that States have made. The initial objective of the study was to compare current 

CCR related regulatory requirements with comparable information from earlier reports. In light 
326

of this, the EPA revisited information already available from other sources about current State 

CCW regulatory programs and concluded that its priority should be on updating how States were 

actually implementing programs, rather than simply gathering further information on State 

regulations. 

Based on a re-evaluation of a subset of State CCR disposal programs (11 out of 24 States) that 

had been evaluated previously in 1988 and 1999, the authors of the report concluded, in part, that 

“For the period between collection of data for the 1999 [Report to Congress] and 2005, the 

change observed was “neutral” for either all or all but one State in every category of regulatory 

control.” [Footnote 32: DOE/EPA Report, page 48] As noted previously, Earthjustice relies upon 

this single statement in a 286 page report to support the implication that States have not 

improved their CCR programs since 2000. From this, Earthjustice draws the conclusion that: 

“no state added specific requirements governing liners, groundwater monitoring, leachate 

collection, closure and postclosure, siting, and financial assurance since the 2000 Regulatory 

Determination.” [Footnote 33: Earthjustice Comments, page 18] 

However, the DOE/EPA report is more subtle and does not support Earthjustice’s conclusion: 

“This suggests that the absence of details about regulatory controls in most states reviewed in the 

1999 RTC and its supporting technical documents made it difficult to ascertain whether 

regulatory changes occurred before or after data were collected for the 1999 RTC for the 

majority of the states.” [Footnote 34: DOE/EPA Report, page 48] 

There are additional reasons for conclusion that the data in the report is insufficient to 

characterize the progress that States have made since 2000: 

1. An evaluation of 11 States is not enough to make any assumptions about the progress in all 

State programs; 

2. The data is not current; it as collected at least six years ago and State programs have changed 

during that time. 

The Earthjustice statement above is not the only selective use of information in the report. For 

example: 

Earthjustice report of a negative finding in the DOE/EPA Report: 

“The report found that a substantial percentage of the large coal ash-producing states evaluated 

failed to mandate one of the most basic mechanisms for regulating waste disposal, namely the 

authority to permit CCR landfills and surface impoundments.” Earthjustice Comments, page 19 

A related positive finding in the DOE/EPA Report: 

“The comparisons suggest that in all eight of the areas of regulatory control reviewed, more net 

disposable CCWs in the States reviewed underwent a tightening of regulatory controls than 
327

underwent a relaxation between the times data were collected for the 1988 RTC and for this 

report.” DOE/EPA Report, page 50 

Earthjustice report of a negative finding in the DOE/EPA Report: 

“Table 20 in the report identifies an additional three states (Colorado, Maryland, and Utah) that 

exempt on-site CCR landfills from state solid waste permitting requirements.” Earthjustice 

Comments, page 19 

A related positive finding in the DOE/EPA Report: 

“Table 20 Identifies 30 States that Do Not Exempt On-Site CCW Landfills from State Solid 

Waste Permitting Requirements.” DOE/EPA Report, page 50 

Earthjustice report of a negative finding in the DOE/EPA Report: 

The report found that a substantial percentage of the large coal ash-producing states evaluated 

failed to mandate one of the most basic mechanisms for regulating waste disposal, namely the 

authority to permit CCR landfills and surface impoundments. 

Earthjustice Comments, page 19 

A related positive finding in the DOE/EPA Report: 

The report identified only 2 states out of 38 that do not permit CCR landfills (Table 20) 

DOE/EPA Report, page 50 

In general, Earthjustice selectively uses only the facts that support its case. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.
328

Comment Number: EPA-HQ-RCRA-2011-0392-0271-6

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Ed Thamke

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1.1 7.1.1.2 7.1.2.1 7.1.2.2 7.1.2.4 7.1.1.3 7.1.2.5

Comment Excerpt Text:

ASTSWMO Survey Revisited 

Earthjustice cites select data from a survey that ASTSWMO performed and submitted to EPA 

prior to the June 21, 2010 proposal. Although it is in the Docket for the proposed rule, the survey 

data was not intended to be taken as official comments to the proposal. As Earthjustice notes, “it 

is not clear from the ASTSWMO survey how many states responded, so these percentages may” 

[Footnote 35: Earthjustice Comments, page 19] provide an accurate picture of State regulatory 

requirements. 

ASTSWMO has since reexamined the data and the results are presented below. It should be 

noted that ASTSWMO and the States do not limit data presentation to those aspects of the 

programs that “look good.” While State programs are far better than portrayed in the Earthjustice 

Comments, most States would agree that improvements can be made. 

Based on information ASTSWMO received in response to a survey of States, following are 

answers to questions relevant to the adequacy of State programs: 

How many States currently generate coal combustion residuals? 

Forty-five States generate coal combustion residuals (CCR). Not all States in which CCR is 

generated have disposal of CCR. CCR is disposed in only 42 of those States. 

ASTSWMO does not have the information for 3 of the 42 States in which CCR is disposed. 

Additionally, ASTSWMO may not have complete information for all 39 of the remaining States. 

For each question presented, the number of States that ASTSWMO has information for is 

provided with the information that is available for those States. 

How many States require permits for disposal? 

Thirty-six out of 42 States require permits for disposal of CCR in landfills. Twenty-nine out of 

32 States require permits for the management of CCR in surface impoundments. In some States, 

the permits may not be specifically for disposal of CCR in surface impoundments. In those cases, 

the permit may be for effluent discharge. 

In the States that require permits for disposal of coal combustion residuals, what are the liner 
329

requirements? 

ASTSWMO has information about landfill liner requirements for 38 States. In 27 of the 38 

States, a bottom liner is required for landfills. Eleven of the 38 States do not require a bottom 

liner. Seven of those 11 States make a determination about requiring a bottom liner on a case-bycase basis. Liner requirements in 32 States are as follows: dual/multiple liner in 9 States; 

composite liner in 14 States; clay liner in 7; and 2 States require another type of liner. Variances 

are allowed in 23 States and exemptions in 7 States. Liner requirements apply to both existing 

and new lateral expansions of landfills in 13 States and only new expansions in 23 States. 

ASTSWMO has information about surface impoundment liner requirements for 26 States. In 17 

of the 26 States, a bottom liner is required for surface impoundments. Eleven of the 26 States do 

not require a bottom liner. Five of those States make a determination about requiring a bottom 

liner on a case-by-case basis. Liner requirements in 19 States are as follows: dual/multiple liner 

in 9 States; composite liner in 5 States; clay liner in 5 States. Variances are allowed in 7 States 

and exemptions in 3 States. Liner requirements apply to both existing and new lateral expansions 

of surface impoundments in 12 States and only new expansions in 9 States. 

In each of the States that require permits for disposal of coal combustion residuals, what are the 

groundwater monitoring requirements? 

ASTSWMO has information about landfill groundwater monitoring requirements for 39 States. 

In 34 of the 39 States, groundwater monitoring is required for landfills. Five of the 39 States do 

not require groundwater monitoring. Groundwater monitoring requirements apply to both 

existing and new lateral expansions of landfills in 32 States and only new expansions in 4 States. 

ASTSWMO has information about surface impoundment groundwater monitoring requirements 

for 27 States. In 18 of the 27 States, groundwater monitoring is required for surface 

impoundments. Nine of the 27 States do not require groundwater monitoring. Six of those 9 

States make a determination about requiring groundwater monitoring on a case-by-case basis. 

Groundwater monitoring requirements apply to both existing and new lateral expansions of 

surface impoundments in 20 States and only new expansions in 3 States. 

In each of the States that require permits for disposal of coal combustion residuals, what are the 

requirements or regulations regarding structural stability? 

ASTSWMO has information about landfill structural stability monitoring requirements for 36 

States. In 30 of the 36 States, structural stability monitoring is required for landfills. Six of the 36 

States do not require structural stability monitoring. Structural stability monitoring requirements 

apply to both existing and new lateral expansions of landfills in 26 States and only new 

expansions in 7 States. 

ASTSWMO has information about surface impoundment structural stability monitoring 

requirements for 25 States. In 16 of the 25 States, structural stability monitoring is required for 

surface impoundments. Seven of the 25 States do not require structural stability monitoring. Two 

of the 7 States make a determination about requiring structural stability monitoring on a case-by-
330

case basis. Structural stability monitoring requirements apply to both existing and new lateral 

expansions of surface impoundments in 13 States and only new expansions in 3 States. 

How is CCR disposal regulated in the States? 

In many States, the authority to regulate surface impoundments is vested in other State agencies 

pursuant to statutes other than solid waste statutes. While it may be other State agencies that 

have enforcement authority for surface impoundments, 43 out of 44 States indicated that they 

coordinate with the enforcing entities to require that steps are taken to protect human health and 

the environment. 

Despite the concerns expressed in the proposed rule, the State enforcing entities in 42 out of 42 

States have the authority to require remediation. The majority of State agencies noted State 

authority for surface impoundments include repair and maintenance during operation (43 out of 

44 States) and closure (41 out of 43 States), as well as: 

- impoundment design and engineering 

-leachate collection 

- gas collection 

- groundwater and leachate monitoring 

- financial assurance 

- post-closure care and maintenance 

- removal 

- replacement of water supply 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.
331

Comment Number: EPA-HQ-RCRA-2011-0392-0273-3

Organization1:Department of Natural Resources, State of Missouri

Commenter1:Alan Reinkemeyer

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Due to the volume of information contained in the NODA, Missouri has focused our review on 

the Earth Justice reports entitled: "Comments of Earth Justice Environmental Integrity Project, 

Sierra Club, Natural Resources Defense Council, Southern Alliance for Clean Energy, Southern 

Environmental Law Center, Physicians for Social Responsibility", and "State of Failure: How 

States Fail to Protect our Health and Drinking Water from Toxic Coal Ash". Enclosed are 

detailed comments that address specific points in the two reports.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0274-1

Organization1:SCANA Corporation

Commenter1:Jean-Claude Younan

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

NEW ANALYSES OF STATE CCR PROGRAMS

SCE&G has reviewed the combined comments in the NODA submitted by Earthjustice, 
332

Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, Southern 

Alliance for Clean Energy, Southern Environmental Law Center, and Physicians for Social 

Responsibility dated November 19, 2010 which attempt to identify gaps and deficiencies in state 

regulatory programs. Our review has found numerous errors and false and misleading claims in 

the above-referenced comments by Earthjustice et al (dated November 19, 2010) which attempt 

as they pertain to regulatory programs in South Carolina, where SCE&G is headquartered and 

operates. With regards to the above-referenced comments by arthjustice et al (dated November 

19, 2010), SCE&G offers the following comments with regards to

the regulatory programs currently in-place in South Carolina:

- On page 26, Table 2 (Is Groundwater Monitoring Mandatory at CCR Landfills?), the table 

states that South Carolina “exempt groundwater monitoring for CCR that meets certain toxicity 

criteria”. This claim is false. Per the current regulations, groundwater monitoring is required for 

any landfill (Class Two and Three landfills) which accepts CCRs, regardless of the toxicity 

criteria. All SCE&G CCR landfills include groundwater monitoring and reporting.

- On page 26, Table 3 (Is Groundwater Monitoring Mandatory at CCR Surface Impoundments?), 

the table states South Carolina “has no groundwater monitoring requirements for CCR 

impoundments”. This claim is false. Per the current regulations, groundwater monitoring is 

required for CCR surface impoundments. All SCE&G CCR surface impoundments include 

groundwater monitoring and reporting.

- On page 28, Table 6 (Are a minimum of Three Downgradient Wells and One Upgradient Well 

Required at CCR Landfills?), the table states South Carolina does not require a minimum of 

three downgradient wells and one upgradient well at CCR landfills. While the current regulations 

do not specify the numbers of wells, the regulations do require a sufficient number of wells to 

represent the quality of background groundwater and groundwater passing the downgradient 

relevant point of compliance. By way of example, all of SCE&G’s landfills have at least one 

upgradient well and greater than three downgradient wells.

- On page 28, Table 7 (Are a minimum of Three Downgradient Wells and One Upgradient Well 

Required at CCR Surface Impoundments?), the table states South Carolina does not require a 

minimum of three downgradient wells and one upgradient well at CCR surface impoundments. 

While the current regulations do not specify the number of wells, the regulations do require a 

sufficient number of wells to represent the quality of background groundwater and groundwater 

passing the downgradient relevant point of compliance. By way of example, all of SCE&G’s 

impoundments have at least one upgradient well and greater than three downgradient wells.

- On page 29, Table 8 (Type of Liner Required for New CCR Landfills), the table states South 

Carolina “exempt certain CCR landfill from liner requirements”. This claim is misleading. With 

the exception of generally inert materials (less than 10 times the MCL), current regulations in 

South Carolina require new CCR landfills to have a minimum 2-ft-thick 1x10-7 cm/sec clay 

liner.

- On page 29, Table 9 (Type of Liner Required for New CCR Surface Impoundments), the table 

states South Carolina “does not require liners at surface impoundments”. This claim is false. 
333

Current regulations in South Carolina require new CCR surface impoundments to have a liner 

system. The current regulations require a minimum liner permeability of 1x10-6 cm/sec, but also 

require impoundments using soils with low permeability rates (e.g. clay) to demonstrate that the 

computed soil permeability rates of the liner are sufficiently low to preclude inappropriate 

seepage, which in practice has resulted in more stringent than 1x10-6 cm/sec liner systems. 

SCE&G’s surface impoundments constructed after 2001 include 2-ft-thick 1x10-7 cm/sec clay 

liners, and in some cases, composite liners (2-ft-thick 1x10-7 cm/sec clay liner + HDPE liner, or 

2-ft-thick 1x10-5 + geosynthetic clay liner (GCL) + HDPE liner).

- On page 30, Table 10 (Is a Leachate Collection System Mandatory CCR Landfills), the table 

states South Carolina exempt certain CCR landfills from leachate collection system 

requirements. This claim is misleading. With the exception of generally inert materials (less than 

10 times the MCL), current regulations in South Carolina require new CCR landfills to have a 

leachate collection system.

- On page 35, Table 21 (Type of Final Cover Required for CCR Landfills), the table states South 

Carolina “exempt certain CCR landfills from final cover requirements”. This claim is false. 

Current regulations provide final cover requirements for all CCR landfills in South Carolina. In 

South Carolina, CCRs are required to be disposed in a Class Three landfill unless the CCRs test 

less than 10 x MCL. In such cases, the material is considered generally inert and can be disposed 

in either a Class Two or Class Three landfill. Class Three CCR landfills require a composite final 

cover liner (low permeable clay + synthetic liner (HDPE, LLDPE, etc), overlying protective 

cover/erosion layer capable of sustaining vegetative growth, stormwater management system, 

and minimum and maximum final grades slopes to minimize infiltration and erosion. Class Two 

CCR landfills require a substantial soil cover, stormwater management system, and minimum 

and maximum final grades slopes to minimize infiltration and erosion. All of SCE&G’s landfills 

final covers include liners, to include low permeable soil liners (1.5-ft-thick 1x10-5 or 1x10-6 

cm/sec clay liners) for Class Two landfills and composite (2-ft-thick 1x10-7 cm/sec clay liner + 

HDPE liner) for Class Three landfills.

- On Page 36, Table 23 (Is 30 Years of Post-Closure Groundwater Monitoring Required for CCR 

Landfills?), the table states South Carolina does not require post-closure groundwater monitoring 

for 30 years at all CCR landfills. This claim is misleading. Current regulations require all Class 

Three CCR landfills to provide 30 years of post-closure groundwater monitoring, and inert CCR 

Class Two landfills to provide 20 years of postclosure groundwater monitoring.

- On Page 39, Table 25 (Is Groundwater Monitoring Mandatory at CCR Landfills?), the table 

states EarthJustice 2010 37-State Review finds South Carolina does not require groundwater 

monitoring at CCR landfills (specifically, the table states No – certain CCR exempt per TCLP). 

This claim is false. Per current regulations, all landfills receiving CCRs in South Carolina (Class 

Two and Three landfills) are required to perform groundwater monitoring. All SCE&G CCR 

landfills have been performing groundwater monitoring since the landfills were permitted.

- On Page 41, Table 26 (Is Groundwater Monitoring Mandatory at CCR Surface 

Impoundments?), the table states EarthJustice 2010 37-State Review finds South Carolina does 

not require groundwater monitoring at CCR surface impoundments. This claim is false. Per 
334

current regulations, all surface impoundments receiving CCRs in South Carolina are required to 

perform groundwater monitoring. All SCE&G CCR surface impoundments perform groundwater 

monitoring.

- On page 43, Table 27 (What Type of Liner Are Required for CCR Landfills), the table states 

EarthJustice 2010 37-State Review finds South Carolina does not require liner at CCR landfills 

(specifically, the table states No – certain CCR exempt per TCLP). This claim is misleading. 

With the exception of generally inert materials (less than times the MCL), current regulations in 

South Carolina require new CCR landfills to have a minimum 2-ft-thick 1x10-7 cm/sec clay liner 

or approved equivalent.

- On page 45, Table 27 (What Type of Liner Are Required for CCR Surface Impoundments), the 

table states EarthJustice 2010 37-State Review finds South Carolina does not require liner at 

CCR surface impoundments (specifically, the table states No liner requirement). This claim is 

false. The current regulations require a minimum liner permeability of 1x10-6 cm/sec, but also 

require impoundments using soils with low permeability rates (e.g. clay) to demonstrate that the 

computed soil permeability rates of the liner are sufficiently low to preclude inappropriate 

seepage, which in practice has resulted in more stringent than 1x10-6 cm/sec liner systems. 

SCE&G newer surface impoundments include 2-ft-thick 1x10-7 cm/sec clay liners, and in some 

cases composite liners (2-ft-thick 1x10-7 cm/sec clay liner + HDPE liner, or 2-ft-thick 1x10-5 + 

geosynthetic clay liner (GCL) + HDPE liner).

- On Page 83, Table 34 (Summary of EIP/Earthjustice Damage Cases: Groundwater Transport to 

Surface Water) pertaining to SCE&G Wateree Station, the table states “fish in Wateree River 

have elevated levels of arsenic in tissue”. There is no valid evidence that Wateree Station is 

contributing to arsenic bioaccumulation in biota of the Wateree River. The fish tissue analysis

results cited in the EIP/EJ report refers to fish sampling conducted by SCE&G in the Wateree 

River in 1999. The results of the sampling were reported in letters from SCE&G to SC DHEC 

dated May 26, 1999 and August 27, 1999. As reported in the referenced letters, the results that 

included the channel catfish samples collected adjacent to the Wateree Station Plant with 

reported arsenic levels of 500 parts per billion are considered invalid due to significant 

variability in the size of fish collected from upstream, adjacent to, and downstream of the plant. 

Subsequent testing of tissue samples taken from blue catfish caught upstream, adjacent to and 

downstream of the plant indicated similar arsenic concentrations in the tissue samples from all 

three locations. Moreover, the levels of arsenic reported for all samples are within the range of 

concentrations reported in 1995 by Duke Power and in 1990 by the US Fish and Wildlife Service 

for various fish species collected from river systems in other areas of both North Carolina and 

South Carolina. In conclusion, arsenic levels in fish collected upstream and downstream of 

Wateree Station do not differ significantly from fish caught adjacent to Wateree Station 

indicating no measurable contribution from plant operations.

- On Page 83, Table 34 (Summary of EIP/Earthjustice Damage Cases: Groundwater Transport to 

Surface Water) pertaining to SCE&G’s Urquhart Station, the table states “Sampling of a 

replacement well positioned near a wetland showed that arsenic was greater than the 0.01 mg/L 

standard. This result indicates that groundwater adjacent to the wetland is contaminated”. The 

groundwater level at the subject well is typically 10- 12 feet below natural ground surface; 
335

therefore, this wetland features does not act as a discharge feature for groundwater to surface 

water. No claim of surface water damage at this location is substantiated.

The South Carolina Department of Health and Environmental Control (DHEC) currently 

regulates the storage and disposal of coal combustion residuals in South Carolina. As addressed 

above, the current regulations in South Carolina are comprehensive and are protective of human 

health and the environment. On November 17, 2010, DHEC submitted comments to EPA 

regarding EPA’s proposed coal combustion residual regulations and concluded the following:

“South Carolina has a comprehensive and mature solid waste management program. The 

Department has regulated solid waste since the early 1970's. In 1991, the South Carolina General 

Assembly passed a comprehensive solid waste management law, the "Solid Waste Policy and 

Management Act," that requires, among others, the permitting of solid waste landfills (S.C. Code 

Ann. §44-96-10 et. seq.). The current landfill regulation is found at Regulation R.61-1 07.19, and 

includes requirements for: liners, leachate collection, third party certification requirements for 

construction and closure and post-closure care, groundwater monitoring, financial assurance, and 

public participation. These program elements have been in place for more than a decade, and 

were recently enhanced in 2008 with significant amendments to the solid waste landfill 

regulations. Based on more than a decade of groundwater monitoring data, none of the State's 

operating CCR landfills that are in compliance with current regulations have impacted 

groundwater. In a state that receives more than 40 inches of rainfall each year, this is a testament 

to the technical soundness of the current regulatory framework.”

The combined comments by Earthjustice et al (dated November 19, 2010) on the CCR proposal 

that are included in the NODA take aim at what it claims are gaps and deficiencies in state 

regulatory programs. As discussed above for the currently regulatory programs in South 

Carolina, the combined comments by Earthjustice et al in the NODA does not demonstrate a gap 

in the regulations in current regulations in South Carolina. Their comments should be afforded 

little weight by EPA as it considers which option to pursue in its final rule.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.
336

Comment Number: EPA-HQ-RCRA-2011-0392-0276-1

Organization1:Texas Coal Combustion Products Coalition (TCCPC)

Commenter1:Michael Nasi

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

DISCUSSION 

The Environmental Groups' Comments contain numerous flaws, including: ( 1) a failure to 

analyze what practices are actually taking place on the ground at CCR landfills and surface 

impoundments; (2) a lack of understanding of the regulatory oversight that exists in states; (3) a 

flawed assumption that states are not willing to adopt updated and modified Subtitle D 

nonhazardous regulations; and ( 4) a failure to recognize or even discuss the benefits of a statesled Subtitle D regulatory option. 

I. The Environmental Groups' Comments are limited by incomplete references to supporting 

documents and a theoretical regulatory discussion rather than a discussion of what is actually 

occurring in states' regulatory agencies and at CCR landfills and surface impoundments. 

The effectiveness of state programs has been repeatedly confirmed, reconfirmed, and then 

confirmed again over the last ten to fifteen years. The 2000 Regulatory Determination concluded 

that the regulatory infrastructure is generally in place at the state level to ensure adequate 

management of CCRs. [Footnote 3: Notice of Regulatory Determination on Wastes from the 

Combustion of Fossil Fuels, 65 Fed. Reg. 32214, 32217. (May 29, 2000).] The report Coal 

Combustion Waste Management at Landfills and Surface Impoundments 1994-2004 ("2006 

DOE/EPA Report"), further confirmed the growing effectiveness of state regulatory programs. 

[Footnote 4: Deborach Elcock and Nancy L. Ranek, U.S. Department of Energy, Office of Fossil 

Energy and the Office of Policy and International Affairs, U.S. Environmental Protection 

Agency, Office of Solid Waste, August 2006.] Despite this history, however, the Environmental 

Groups allege that the states' regulatory infrastructure is somehow not in place. 

The Environmental Groups mischaracterize the studies conducted over the course of this 

decades-long rulemaking process in order to bolster their claims that states' regulatory programs 

are incapable or unwilling to adequately regulate CCR disposal. For instance, when referring to 

the 2006 DOE/EPA Report, the Environmental Groups state: 

The 2006 DOE/EPA Report, which reviewed in detail the regulatory frameworks of 11 states, 

also documented continuing substantial deficiencies in state regulation of CCR management. 

[Footnote 5: Comments of Earthjustice, Environmental Integrity Project, Sierra Club, Natural 
337

Resources Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law 

Center, and Physicians for Social Responsibility Groups, 18, Nov. 19, 2010; EPA Docket No. 

EPA-HQ-RCRA-2009-0640-6315 ("Environmental Groups' Comments")] 

The Environmental Groups' Comments go on to outline a number of deficiencies that the 

Environmental Groups alleged to have found. Contrary to the Environmental Groups assertions, 

while the report noted some deficiencies in the regulations of certain states, the report did not 

find that a "regulatory infrastructure" was not in place. Indeed, the key findings of the report 

contradict the Environmental Groups' assertions. The primary 2006 DOE/EPA findings were: 

Between 1994 and 2004, the amount and quality of environmental controls used at CCW 

management units appear to have increased. 

In eight areas of regulatory control reviewed for this report, more CCW s destined for landfills in 

the States reviewed had tightened regulatory controls than had relaxed controls between the 

times data were collected for the 1988 RTC and for this report. 

In the 16 States hosting surveyed units, we found that State regulators did not issue variances 

unless there were sound scientific bases to support the variance requests. [Footnote 6: 2006 

DOE/EPA Report at S-5 S-10.] 

The conclusions from the report clearly recognize the value of the state-led regulatory approach. 

However, the Environmental Groups' Comments ignore these fundamental findings and assert 

that there must be no regulatory discretion regarding liners, groundwater monitoring, and other 

factors relating to the management to CCRs in order to conclude that a state-led program is 

adequate. [Footnote 7: See Environmental Groups' Comments at 39-45.] In almost a binary 

approach to assessing states' ability to regulate, either the state receives credit for absolute 

regulations with no variance/allowance or zero credit for any minor variance or allowance. The 

world of environmental regulation, particularly in waste regulation where geology and other site 

specific issues must be factored in, is not binary; including variances, qualified exemptions, and 

other site-specific flexibility is the norm of state and federal solid waste regulation. 

As further support for their position that federal intervention is needed, the Environmental 

Groups essentially claim that states have a tendency to disregard public safety. They justify this 

position by citing a handful of instances where regulators granted variances related to the 

handling and disposal of ash. They conclude that these variances "reveal that when state law 

gives regulators discretion to waive basic safeguards such as liners and cover, the states use that 

discretion liberally." [Footnote 8: Id. at 23.] 

Various types of laws contain provisions for the granting of variances these exist at the federal, 

state, and local level. Thus, the existence of a provision affording a regulator an ability to grant a 

variance is not all that unusual. The position that States, by design, use such variances for bad 

intent, an argument forwarded by the Environmental Groups, is inane. Missing from the 

Environmental Groups' analysis is a discussion of the factual data or justifications for these 

variances. 

The Environmental Groups go on to state that "even the 2006 DOE/EPA Report documented 52 
338

requests for variances from CCR disposal requirements, of which 4 7 were granted by state 

regulators." [Footnote 9: Id.] In a blatant example of cherry-picking only their preferred 

language, the Groups failed to include the actual findings of the DOE/EPA's analysis of the use 

of variances, where the 2006 DOE/EPA Report found that, as stated above, "[ s ]tate regulators 

did not issue variances unless there were sound scientific bases to support the variance requests." 

[Footnote 10: 2006 DOE/EPA Report at S-10.] 

Further contradicting the Environmental Groups' assessment that liners and groundwater 

monitoring requirements were insufficient and that gains are not being made in the regulation of 

CCRs, the 2006 EPA/DOE report found that liner usage had become "essentially ubiquitous" 

with 55 of the 56 new units having liners. [Footnote 11: Id. at S-5.] The vast majority (91 %) of 

the studied units built or expanded between 1994 and 2004 had groundwater monitoring. 

[Footnote 12: Id. at S-5-S-6.] These advancements in the management of disposed CCRs are 

particularly striking when compared to the gains found in the May 2000 Bevill Determination. In 

determining that Subtitle C Regulation was not required in the 2000 Bevill Determination, EPA 

noted the significant improvements in waste management practices, stating that for units built 

between 1985 and 1995, liners were used at 75 percent of landfills and 60 percent of surface 

impoundments. [Footnote 13: 2000 Regulatory Determination, 65 Fed. Reg. at 32216.] 

Groundwater monitoring was implemented at 88 percent of landfills and at 65 percent of surface 

impoundments. [Footnote 14: Id.] 

The Environmental Groups find that "regulatory failure ha[ s] left the public exposed to pollution 

that is dangerous and illegal." [Footnote 15: Environmental Groups' Comments at 4.] However, 

there is no evidence that the public is actually being exposed to pollution. Existing "proven" 

damage cases are already being properly remediated under state remediation programs, and to a 

limited extent, federal remediation programs. In the 2000 Regulatory Determination, EPA found 

that all of the "proven" damage cases were being adequately addressed; the states were 

responsible for remediation at all of the sites, except for two being addressed at the federal level. 

[Footnote 16: 2000 Regulatory Determination, 65 Fed. Reg. at 32216.] Of the 16 "proven" 

damage cases to groundwater, EPA itself has found that corrective actions have been completed 

in seven cases and are ongoing at the remaining nine cases. [Footnote 17: CCR Rule Proposal, 75 

Fed. Reg. at 35150, N. 43.] OMB made a similar assessment during the pre-proposal analysis of 

the Subtitle C only proposal, stating that "[t]he preamble repeatedly cites a need for federal 

enforcement and permitting. However, of the proven damage cases cited, the majority were 

addressed through state administrative action." [Footnote 18: Interagency Working Comments on 

Draft Rule under EO 12866, repost ofEPA-HQ-RCRA-2009-0640-0263, EPA-HQ-RCRA-2009-

0640-0349 at I.] 

With regard to the alleged damage cases in Texas, all have either been disproven or resolved. 

Only one new Texas damage case has been alleged by the Environmental Groups and, as no 

doubt will be addressed by other commenters, those allegations fall far short of the statutory test 

for damage cases and in no way indicate an inadequate regulatory framework in Texas. 

Another of the Environmental Groups' cherry-picking exercises that warrants mention is its 

attempt to summarize the 2009 survey conducted by ASTSWMO as demonstrating that "basic 

safeguards are simply not required by the majority of the states." [Footnote 19: Environmental 
339

Groups' Comments at 20] In reality, ASTSWMO confirmed the increasing level of protection 

provided by state controls, finding that 86% of the states with CCR landfills and 69% of the 

states with CCR surface impoundments have permitting requirements for those disposal units. 

[Footnote 20: Letter from the Association of State and Territorial Solid Waste Management 

Officials to Matt Hale, U.S. Environmental Protection Agency, Director, Office of Resource 

Conservation and Recovery (April 1, 2009).] 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0276-2

Organization1:Texas Coal Combustion Products Coalition (TCCPC)

Commenter1:Michael Nasi

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

II. The Environmental Groups' Comments fail to adequately account for the numerous other 

ways states oversee CCR disposal.

There are numerous enforcement and regulatory controls at the disposal of state regulators. 

While TCCPC cannot speak for every state impacted by this rule, TCCPC is able to articulate the 

numerous ways in which Texas has the regulatory authority to regulate and prevent 

environmental impacts from CCRs. TCCPC posits that similar structures and regulatory 

redundancies as those outlined below can be found in other states. 

The Environmental Groups conclude that Texas does not have sufficient authority to control 
340

onsite disposal of CCR because such on-site disposal is not subject to a "permit." Due to this 

constrained view of Texas' regulatory program, the Environmental Groups overlook the 

extensive regulatory structure controlling the management and disposal of CCRs in Texas. While 

no permit is required, a person must obtain authorization from the state in order to dispose of 

CCRs on-site. Texas' authorization process is robust and involves the submittal of various types 

of information (e.g. type of waste management unit, waste composition, waste management 

methods, facility engineering plans and specifications, groundwater monitoring plans, 

information related to the geology and hydrogeology where the facility will be located, closure 

and post-closure plans) to the regulatory agency, the Texas Commission on Environmental 

Quality ("TCEQ"). Additionally, the regulations require the recording of the disposal area in the 

county deed so that future landowners are made aware of the existence of the disposal area. 

[Footnote 21: 30 TEX. ADMIN. CODE §§ 335.5-335.6.] Only after all necessary information is 

submitted and approved, is the facility designated as a registered waste management unit and 

authorized to operate. 

TCEQ ensures that the CCR waste management units are protective of human health and the 

environment by analyzing all of the above-described submitted information and ensuring that 

published guidance has been followed. [Footnote 22: Id. at §335.3.] TCEQ maintains regulatory 

jurisdiction and enforcement authority over the units to ensure that facilities follow through on 

their commitments to protect human health and the environment. [Footnote 23: Texas has broad 

prohibitory language in regulation (30 TEX. ADMIN. CODE §335.4), the Texas Water Code 

(TEX. WATER CODE §26.121), and the Texas Solid Waste Disposal Act (TEX. HEALTH & 

SAFETY CODE Ch. 361). Texas' enforcement powers extend to discharges on land as well as 

surface waters and groundwater, activities that may create a nuisance, and activities that 

endanger public health and welfare.] Most significantly, TCEQ administers a formal, thorough 

review and approval process over the closure and post-closure care of the waste management 

units. Without proper design and construction (and overall adherence to the set of guidelines 

established by Texas), collection of significant groundwater data during operation of the unit, 

and the maintenance of management practice records, it becomes virtually impossible to close a 

waste management unit in Texas. Therefore, while it may not fall squarely within the 

Environmental Groups' or EPA's narrow rubrics for analyzing CCR disposal oversight, the Texas 

program is comprehensive and protective of human health and the environment. 

Perhaps the best way to demonstrate why the TCEQ should be entrusted to regulate CCRs is to 

simply look at the results. The Environmental Groups complain of the TCEQ's inadequacies, yet 

they can point to no current or relevant Texas damage case to back up that statement. 

TCEQ's regulatory framework has proven to be a model not just in preventing environmental 

harm but also promoting the beneficial use of CCRs. As part of EPA's efforts to promote 

reasonable and effective state regulation of CCRs and encourage their beneficial use, EPA 

commissioned the Energy & Environmental Research Center (EERC) in 2005 to conduct a 

detailed analysis of seven state programs and determine a "model" CCR regulatory state. Texas 

was selected as the pilot state for an in-depth review of its CCR programs, policies, and use 

practices. [Footnote 24: Tera D. Buckley & Debra F. Pflugheoft-Hassett, Review of Texas 

Regulations, Standards, and Practices Related to The Use of Coal Combustion Products, Energy 

& Environmental Research Center (2005).] Texas was chosen because of its progressive and 
341

realistic approach. The report ultimately concluded that 

[O]ther states with less successful CCP utilization can learn from what Texas has done right and 

implement similar activities in their own states. [Footnote 25: Id. at vi.] 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0276-4

Organization1:Texas Coal Combustion Products Coalition (TCCPC)

Commenter1:Michael Nasi

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5

Comment Excerpt Text:

IV. The Environmental Groups' Comments do not analyze or account for EPA's ability to 

propose a state-administered Subtitle D regulatory option. 

As discussed above, EPA predicts a Subtitle D compliance rate of 48% amongst the states, with 

the Environmental Groups asserting an even lower compliance rate. TCCPC believes it is clear 

that the states are adequately addressing CCR disposal and are fully capable of administering a 

Subtitle D CCR regulatory program. It is equally clear that the EPA has the statutory authority to 

oversee a state-administered Subtitle D CCR regulatory program. The Environmental Groups' 

critiques of the Subtitle D program, like EPA, never recognize the clear authority under RCRA 

for EPA to develop a process to evaluate state CCR programs to ensure compliance and require a 

prior approval mechanism enforced by the states. 

EPA's authority to rely upon a state-administered system of prior approval comes from the same 

provisions under which EPA has already developed federally enforceable criteria for Municipal 
342

Solid Waste Landfills (MSWLFs) and non-municipal solid waste landfills that may receive 

conditionally exempt small quantity generator (CESQG) hazardous waste. RCRA Section 

4010(c), in conjunction with the provisions of RCRA Section 4005(c)(1)(B), outlines a clear 

method for EPA to promulgate nonhazardous waste rules that can be administered through state 

programs and backed up by EPA enforcement for states failing to adequately implement federal 

rules. This further prevents duplication of rules and allows for states to tailor programs that meet 

the states' unique characteristics and environmental conditions. This analysis is more thoroughly 

discussed in TCCPC's comment filed on the CCR rule proposa1. [Footnote 32: See Docket No. 

EPA-HQ-RCRA-2009-0640-7395.] 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0277-1

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Henry Darwin

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

ADEQ would like to take this opportunity to comment on the erroneous information included in 

the November 19, 2010 comment letter submitted by Earth justice, Environmental Integrity 

Project, Sierra Club, Natural Resources Defense Council, Southern Alliance for Clean Energy, 

Southern Environmental Law Center, and Physicians for Social Responsibility. Specifically, 

ADEQ would like to address the incorrect assessment that state regulations are grossly deficient 

in the majority of states, including Arizona. 

While landfill surface impoundments and areas containing ash from the on-site combustion of 
343

coal are exempt from regulation as a solid waste in Arizona, ADEQ's Air Quality and Water 

Quality regulatory programs, and the Arizona Department of Water Resource's Dam Safety 

Program provide the regulatory framework necessary to protect human health and the 

environment from coal combustion residuals (CCR) management units The following is ADEQ's 

response to the false statements made in the November 19, 2010 comment letter regarding 

Arizona's lack of regulation of CCR management units. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0277-2

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Henry Darwin

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Air Quality Program 

The assessment in the comment letter is incorrect with regards to fugitive dust and air quality in 

Arizona. While ADEQ does not regulate CCR surface impoundments and landfills directly (i.e., 

ADEQ does not have air quality rules that address them specifically), if there is a potential for 

fugitive dust from the surface impoundment or the landfill, Arizona regulations require that the 

owner or operator take reasonable precautions to minimize the dust [Footnote 1: Arizona

Administrative Code, Title 18, Chapter 2, Article 6]. ADEQ is not aware of any dust related 

complaints or issues with CCR sites in Arizona. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 
344

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0277-4

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Henry Darwin

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.4.2 7.3.1

Comment Excerpt Text:

Through these requirements implemented by ADEQ, Arizona has a strong regulatory framework 

in place to protect human health and the environment concerning CCR management units. EPA 

should not promulgate new CCR regulations that would adversely impact proven state regulatory 

programs like those that already exist in Arizona.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.
345

Comment Number: EPA-HQ-RCRA-2011-0392-0278-2

Organization1:Cleco Corporation

Commenter1:Bill Matthews

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Comment III 

The authors’ claims, in Comments Of Earthjustice, Environmental Integrity Project, Sierra Club, 

Natural Resources Defense Council, Southern Alliance For Clean Energy, Southern 

Environmental Law Center, Physicians For Social Responsibility (EJ), that hazardous waste 

controls are needed to correct State CCR regulatory deficiencies are unfounded. 

The main point that seems to be made in EJ is that EPA must impose hazardous waste controls 

because of the alleged “failure of states to regulate adequately the disposal of coal combustion 

waste. EJ goes into more detail with their allegation by stating that “State programs are incapable 

of adequately regulating the disposal of coal ash.” Cleco categorically disagrees with these 

statements by EJ. The solid waste program in Louisiana, through which the Cleco CCR landfills 

and impoundments at the Dolet Hills Power Station and the Rodemacher Power Station are 

regulated, contains most of the requirements mentioned by EJ as being part of an ideal CCR site 

program. The Louisiana program is not a Subtitle C program but is in most respects a Subtitle D 

Prime program. 

As documented in EJ, the Louisiana program includes most of the requirements envisioned by 

the authors as being needed in an ideal program with respect to permitting, groundwater 

monitoring, liners, leacheate control and other items. EJ makes at least two errors in describing 

the Louisiana program. In addition, the authors present several other notions about an ideal 

program that are open to challenge: 

1. EJ states that in the Louisiana solid waste regulations, “grandfathered” CCR landfills do not 

require groundwater monitoring. However, the LA DEQ solid waste regulations clearly 

state/require that all industrial Type I landfills, a category to which CCR sites belong, are 

required to meet the groundwater monitoring requirements. 

2. EJ implies that quarterly groundwater monitoring should be required but doesn’t demonstrate 

why. Groundwater moves very slowly and so quarterly monitoring is unnecessary. The Louisiana 

program calls for semiannual monitoring. However more frequent monitoring can be required as 

needed on a case by case basis. 

3. EJ implies that groundwater well arrangements must include at least one up-gradient well and 

at least 3 down-gradient wells. EJ doesn’t explain why a minimum of three is required downgradient. Louisiana rules require an adequate number both up-gradient and down- gradient. This 

could require as little as one or two wells up to any amount of wells determined necessary for 
346

describing the groundwater condition. 

4. EJ lists a number of states, 15 including Louisiana, that do not require dust control at CCR 

sites. However, in the Louisiana Administrative Code, LAC33:VII.521.G.1, the text states that 

permit applications for all solid waste processing and disposal facilities must include “Provisions 

for Controlling Vectors, Dust, Litter and Odors”. Therefore, contrary to the information in EJ, 

the requirements in the Louisiana solid waste permit regulations for CCR landfills and 

impoundments do require that fugitive dust be addressed. 

5. EJ contains a data table, Table 29, titled On-site groundwater data exceeding Federal Primary 

Maximum Contaminant Levels (MCLs). Table 29 is adapted from “In Harm’s Way” and lists 

information from the Cleco Dolet Hills Power 

Station and the Rodemacher Power Station showing groundwater sample data with arsenic, lead 

and selenium above MCL’s. However, in the previous discussion in Comment II above, it was 

demonstrated that this data does not prove impact by the CCR sites on groundwater. This is 

discussed again next: 

Dolet Hills Power Station: 

As previously discussed above in Comment II, it was explained that the Dolet Hill Power Station 

selenium data actually came from an up-gradient well but was erroneously listed in the In 

Harm’s Way report as a down-gradient well. Also it was discussed that the arsenic and lead data 

from these wells trended down over the subsequent three semiannual sampling events to a non 

detect concentration level which demonstrates the exceedences for arsenic and lead in EJ Table 

29 to be outliers. In addition none of these sample events for DHPS represented in EJ Table 29 

demonstrated a statistical increase between up-gradient versus down-gradient wells which is 

necessary to conclude potential impact to the ground water by the CCR sites. 

Rodemacher Power Station: 

For the Rodemacher Power Station, EJ Table 29 shows arsenic and lead above the respective 

MCL’s for sampling events in 2009. But as discussed in Comment II, two of the wells of interest 

in EJ, W1 and W21, are listed in the groundwater sampling reports as up-gradient wells, rather 

than down-gradient wells, and therefore do not imply impact to groundwater due to arsenic from 

the CCR sites. In addition the arsenic data from the down-gradient wells from this 2009 sampling 

event did not show a statistically significant increase over the up-gradient wells. As a result the 

2009 sampling events did not potentially demonstrate an impact from the CCR units for arsenic. 

The lead data listed in EJ Table 29 involved wells used for monitoring groundwater around 

waste water treatment impoundments that are commonly referred to as metal cleaning waste 

ponds. These units do not receive CCR. Therefore this data is out of context with respect to 

claims involving CCR. Once again, because there were no valid SSI events involving the arsenic 

and lead data in EJ Table 29, the indication is that the CCR sites did not potentially impact the 

groundwater during these arsenic and lead sampling events. 

In summary, Comment III shows that a State, Louisiana, administers a solid waste regulatory 

program for CCR the successful application of which is shown by the solid waste units at two 

Cleco power stations which demonstrate no impact to the environment by the CCR units. The 

success of the Louisiana regulatory program, a program very similar to Subtitle D Prime, refutes 

both the claim in EJ that “State programs are incapable of adequately regulating the disposal of 
347

coal ash” and the EJ conclusion that a Subtitle C program is needed with EPA enforcing the 

program. Obviously the Louisiana program structure and performance proves this. It shows that 

a Subtitle D Prime program enforced by each State is adequate for protection of health and the 

environment

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0284-2

Organization1:Alabama Department of Environmental Management (ADEM)

Commenter1:Wm. Gerald Hardy

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As for the notice of data availability, ADEM is troubled that EPA would put such an inordinate 

amount of credence in a document as full of misleading inaccuracies and intentional 

mischaracterizations as the EarthJustice report entitled: "State of Failure: How States Fail to 

Protect our Health and Drinking Water from toxic Coal Ash." EPA has a long history of working 

cooperatively with its state partners to ensure the proper management and disposal of solid 

wastes and knows firsthand the hard-work and dedication the state program staffs invest in this 

endeavor. It would seem obvious that if EPA believed there to be any validity whatsoever to the 

outlandish thesis of the Earthjustice report, that the Agency would have acted to step in at some 

point over the past 20+ years under its authorities granted by RCRA. It would appear more than 

coincidental that EPA's current course of action regarding the sufficiency of state programs 

comes while Congress is considering legislative action to codify the primacy of state programs in 

regulating CCR.

As to the specific claims of the Earthjustice report, it should be noted that the report dated is 
348

November 19, 2010. On May 25, 2011, Governor Robert Bentley signed a law that removes the 

exemption for coal combustion by-products from regulation as a solid waste in Alabama. It 

should be noted that ADEM drafted and actively supported the passage of this legislation, while 

environmental groups and individuals with ties to Earthjustice opposed its passage. Earthjustice 

notes repeatedly in their comments that Alabama law exempts CCR from regulation, and as such, 

Alabama exemplifies the States' reluctance to regulate CCR. Moreover, in a report published in 

August 2011, Earthjustice identified Alabama as one of its 12 Most Dangerous States 

"representing the worst of the worst when it comes to coal-ash disposal." Earthjustice fails to 

acknowledge, or was unaware of, both the significant change in Alabama's law governing the 

regulation of CCR disposal and ADEM's proactive leadership in its passage. Such action could 

hardly be considered as "reluctance" by the State.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0284-3

Organization1:Alabama Department of Environmental Management (ADEM)

Commenter1:Wm. Gerald Hardy

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1.1 7.1.1.2 7.4.1

Comment Excerpt Text:

As for the newly-passed state law, not only did Alabama elect to regulate coal ash as a solid 

waste effective immediately, it specifically authorized the future adoption and implementation of 

a federal regulatory program for disposal of CCR. Until such time as said federal program is 

adopted, the disposal of CCR would fall under Alabama's existing solid waste requirements. 

Under these regulations, coal combustion by-products are classified as an industrial solid waste 

and are subject to a hazardous waste determination. If determined to be non-hazardous, the waste 
349

must be disposed of in accordance with ADEM's Solid Waste Program requirements for 

industrial waste. Landfills permitted to accept this type waste must be constructed with liner and 

leachate collection systems and must also conduct periodic groundwater monitoring.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0284-4

Organization1:Alabama Department of Environmental Management (ADEM)

Commenter1:Wm. Gerald Hardy

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Given the revision made in our state law, Earthjustice's portrayal of Alabama as the worst State 

in its State of Failure report is unfounded and inaccurate, as are its overall characterization of 

States as being incapable and unwilling to regulate CCRs in an environmentally safe and 

technically sound manner. Furthermore, its refusal to acknowledge the change in Alabama's 

statute raises doubts about Earthjustice's ability to accurately and independently evaluate the 

progress that States have made improving their CCR programs. Such doubts should be of grave 

concern to EPA in its evaluation of the worth of the Earthjustice report in arriving at a final 

decision on the CCR rulemaking.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 
350

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0285-1

Organization1:Florida Department of Environmental Protection (DEP)

Commenter1:Jeff Littlejohn

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

This letter provides important information on concerns that have been expressed by others on 

environmental impacts from coal-fired power plants in Florida and the adequacy of Florida's 

regulatory programs. DEP continues to believe that its existing regulations for managing coal 

combustion residuals (CCR) in Florida are adequate.

Many of Florida's originally coal-fired power plants no longer use coal, have converted to other 

fuel sources, and have stopped generating Coal Combustion Residuals (CCR). Twelve of 

Florida's 80 permitted power plants still use coal as a fuel. With almost 19 million Floridians, 

most of whom depend on groundwater for their drinking water supplies, Florida's regulatory 

framework must ensure protection of the groundwater resource. In Florida, our existing 

regulatory programs are already focused on protecting groundwater and surface water resources 

from the environmental concerns that are cited in the referenced documents, including the safety 

of impoundments and potential pollutants from CCR.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
351

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0285-4

Organization1:Florida Department of Environmental Protection (DEP)

Commenter1:Jeff Littlejohn

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 8.9

Comment Excerpt Text:

IN HARM'S WAY: Lack of Federal Coal Ash Regulations Endangers Americans and Their 

Environment

Throughout the document, various states refer to Florida’s adopted groundwater standard for 

vanadium of 0.049 mg/L. However, Florida has not adopted a vanadium groundwater standard. 

The 0.049 mg/L standard is the cleanup target level for vanadium adopted under Florida's 

Contaminant Cleanup Target Levels rule in Chapter 62-777, Florida Administrative Code 

(F.A.C.), which provides criteria in tables and figures that apply to site rehabilitation.

Out of Control: Mounting Damages From Coal Ash Waste Sites

In the section Summary of Damage Cases, the authors compare the pollutant levels to Florida's 

cleanup target levels in Chapter 62-777, F.A.C, Since the activities listed in the summary are not 

subject to these cleanup levels a direct comparison is inappropriate. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 
352

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0287-1

Organization1:Illinois Environmental Protection Agency (EPA)

Commenter1:John Kim

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Attached please find Illinois EPA's comments made in response to statements from EarthJustice, 

the Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, Southern 

Alliance for Clean Energy, Southern Environmental Law Center, and Physicians for Social 

Responsibility dated November 19, 2010 (Docket ID No. EPA-HQ-RCRA-2009-0640).

Comment Number: EPA-HQ-RCRA-2011-0392-0290-7

Organization1:Alliant Energy Corporate Services, Inc. on behalf of Interstate Power and 

Light Company and Wisconsin Power and Light Company

Commenter1:Douglas Kopp

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The New Analysis of State Programs Further Supports Management of CCR as a

Non-Hazardous Material:

Section VII includes comments from Earthjustice et al., state representative organizations 

submitted by the Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO) and the Environmental Council of the States (EGOS), and various state agencies. 

The Earthjustice comments represent a cursory review of state regulatory programs, alleging 

gaps and deficiencies exist in current programs, and that states are unable to promulgate or 

enforce CCR management programs. The states dispute this allegation, additionally noting the 

proposed "nonhazardous" waste option provides the same environmental protectiveness as the 

"hazardous waste" option. Alliant Energy is not familiar with all state programs, but is 

knowledgeable of the Wisconsin CCR landfill program ... where requirements for an engineered 

liner, leachate collection system, cover, drainage, groundwater monitoring, etc. are already in 
353

place. This program today essentially reflects the environmental protectiveness being proposed 

in the EPA rulemaking, effectively discrediting the allegations by environmental groups of 

regulatory "gaps". Hence, this data demonstrates that effective programs providing 

environmental protectiveness exist under current non-hazardous state regulatory programs, with 

no compelling reasons for CCR regulation as a "hazardous waste".

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: TRANS-ARL-0109-1

Organization1:Sierra Club

Commenter1:Drew Ball

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.4

Comment Excerpt Text:

We applaud EPA for recognizing the very real health and 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 extensive 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 be issued quickly before more communities are exposed. 

Continuing to ignore scientific and safety concerns could come at a very high cost. 

North Carolina issued -- I'm sorry, the North Carolina Sierra Club issued a report on April 11th -

- April 12th of this year documenting how a lack of federal controls and weak state 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 
354

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 IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: TRANS-CHI-0005-1

Organization1:Prairie Rivers Network

Commenter1:Traci Barkley

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

1) Illinois officials have known that coal ash handling and disposal practices have been negligent 

and threatening clean water and public health. We have data from nearly 20 years ago showing 

as much. What EPA needs to hear is that it wasn't until the December 2008 impoundment failure 

in Kingston, Tennessee that a state-wide review of these ash impoundments was initiated. The 

findings have been startling: I. Most coal ash impoundments do not have liners or other 

protective measures to contain waste and prevent pollution of groundwater. Ii. Groundwater 

monitoring was not required at most coal ash impoundments. Iii. Groundwater is contaminated at 

ten power plants, those that have been investigated thus far; and iv. Dams creating the 

impoundments at most sites are unpermitted and have not been inspected for safety or stability. 

In Illinois, we are missing what we so desperately need to protect our people and wildlife from 

coal ash contamination: liners, monitoring, effective cleanup plans, dam safety requirements, 
355

enforceable standards, which brings me to my second point. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: TRANS-CLT-0002-1

Organization1:North Carolina Chapter of Sierra Club

Commenter1:Molly Diggins

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:

Coal ash is of particular importance to North Carolina, for we have the dubious distinction of 

having been identified by the EPA as having more high-hazard coal ash ponds than any other 

state in the country. We know that we generated last year nearly 4 million tons of dry ash. We 

have no idea how much wet ash was generated because it's not required to report that 

information. 

Following the catastrophic spill in Tennessee, we looked around. We took a close look at what's 

happening in North Carolina, plus looking at other states to see what we needed to do here. And 

we're frankly astonished to learn that despite what is known about the health impacts of coal ash 

and the toxins, that there's no agency, no individual, no institution in North Carolina that can 

answer the question: how much coal ash are we generating, where is it going, and is it safe? 

There is a hodgepodge of programs and regulation but ultimately, North Carolina is awash in 

coal ash, and there is no cop on the beat. Here is what we do know: investigations, when they 

have taken place, have shown that we are having problems with groundwater and surface water 

contamination in North Carolina. And the list of damage reports is continuing to grow here in 

this state, and nationally. 

We believe this is only the tip of the iceberg. The public is just now really becoming engaged in 
356

understanding what may be in their backyard, what may be in the lot next door; in fact, what 

might be under their own property. 

I know that this rule as proposed does not address beneficial fill, but I do want to point out in 

North Carolina we have a loophole. Maybe they don't in other states, but we have a loophole 

here that allows largely unregulated dumping of coal ash in unlined landfills. That is a serious 

problem. 

Subtitle D might have been worth a try a decade ago when EPA first started giving serious 

consideration to addressing the health impacts. That time is long past. The magnitude of the 

problem is such that Option C is the only viable option. Citizens and states need consistent, 

federally-enforceable requirements if we are going to succeed in managing this threat to public 

health. 

Finally, let me conclude by saying that this is a moment of leadership. We appreciate that the 

EPA inherited this problem from a previous administration, but the public is really looking to 

you to act. There are many here today who are going to talk to you about beneficial fill. I would 

just state that a failure to act to protect public health to avoid a hypothetical public relations 

problem for certain uses of coal not regulated by this rule, would be a complete abdication of the 

public trust. We urge you to adopt Option C. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: TRANS-CLT-0011-1

Organization1:Tampa Electric Company

Commenter1:Randy Melton

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:
357

Tampa Electric serves over 700,000 customers throughout the Tampa Bay region of central 

Florida. TECO operates two coal-fired power plants that generate approximately one million 

tons of CCRs annually, of which over 97 percent is beneficially reused in a variety of 

environmentally-sustainable applications. 

At both coal plants, we have worked with the Florida Department of Environmental Protection to 

modernize the facility's existing CCR management units. These improvements have been 

required by the FDEP to ensure the protection of groundwater and surface water resources in the 

vicinity of these plants. Projects have included the capping and closure of inactive former 

disposal units, the lining of CCR impoundments and the redesign of handling systems to 

eliminate onsite storage of CCR products prior to beneficial reuse. 

The impoundments and landfills at our plants have been retrofitted with liner systems that meet 

the permeability and leachate control standards required by the federal Subtitle D regulations. 

Any future facilities will also be required to meet these standards. Our experience is provided as 

an example to illustrate the effectiveness of Florida's solid waste regulatory program in 

addressing the safety of CCR management units that are constructed within our state. Other 

Florida utilities have similar experience with this program, which is already authorized under 

federal Subtitle D. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: TRANS-CLT-0013-1

Organization1:Southern Environmental Law Center

Commenter1:Chandra Taylor

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:
358

Southern Environmental Law Center's support for the Subtitle C option is based on my review of 

state statutes and regulations across the Southeast, which reveal significant statutory and 

regulatory gaps in CCR regulation that result in inadequate protection of the environment and 

public health from the dangers proposed by CCRs. 

Gaps in regulation previously identified by the EPA have not been substantially addressed by the 

states in the intervening period and therefore only federal oversight under Subtitle C will result 

in protective regulation. 

In particular, as to inadequate state regulation, in North Carolina in 2007 a comprehensive solid 

waste management act was passed. Most facilities became subject to significantly stronger 

requirements for where solid waste facilities could be placed. CCR landfills were specifically 

exempted from those provisions. In fact, in addition to the particular exemption for new CCR 

landfills, groundwater monitoring at CCR landfills is voluntary rather than mandatory. In 

particular, in the new law the statute specifically states that compliance with performance of the 

landfill to prevent releases of waste to the environment may be determined based on the leakage 

rate rather than monitoring well data. Adequate oversight to determine if CCR constituents have 

migrated off-site require the use of monitoring wells. Thus, this statute is not sufficiently 

protective. 

Further, when a leak is detected, there is no set time period within which corrective action must 

be taken. 

In South Carolina, the stringency of regulation of CCR landfills depends on the result of a shortterm leach test, the toxicity characteristic leaching procedure. This test has been soundly 

discredited for its failure to accurately predict the migration of contaminants from coal ash. 

In Alabama, despite being a very large CCR producing state, CCR landfills and surface 

impoundments are not specifically regulated. 

Overall, in the states of Alabama, North Carolina, South Carolina, Virginia, Tennessee, and 

Georgia, all six states fail to require liners for all CCR surface impoundments and landfills. And 

Georgia, Alabama, and South Carolina, they all fail to require that CCR disposal units be 

separated from groundwater. In Alabama, Georgia, North Carolina and Tennessee, they all fail to 

require that all CCR disposal units obtain solid waste permits. And all six states failed to require 

all waste unit to have groundwater monitoring systems during active life and post-closure.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 
359

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: TRANS-CLT-0084-1

Organization1:North Carolina House

Commenter1:Tracy Harrison

Commenter Type: State Elected Official

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.4

Comment Excerpt Text:

I'm a member of the North Carolina House, serving in my third term representing Greensboro. 

And I'm not going to repeat all that you all have heard about the environmental issues associated 

and public health issues associated with coal ash but I would like to talk about my extraordinary 

frustration with getting regulation done at the state level here in North Carolina, and why we 

need Federal leadership on this. 

It was pretty troubling for me to find out how ubiquitous coal ash is used in North Carolina, in 

structural fill on construction sites, on the roads to melt snow and ice and it goes virtually 

unregulated, unmonitored, unenforced, unreported. So I have been working for three years to 

introduce legislation at the state level to bring in some new practices and provide better 

oversight, and I feel stymied in efforts by the coal ash producers who would prefer Federal 

regulation -- at the federal level, but I believe -- Subtitle D, is treating it as regular household 

waste, and I contend to you all that it's much too toxic to be used, to be regulated as regular 

household waste. 

And it's pretty clear that the states, when I was looking for legislation, model legislation, around 

the country to model a North Carolina bill, I couldn't find one. So it's my feeling that there's not 

adequate regulation of coal ash anywhere in any state. So we really need federal regulation and 

we need federal regulation under Subtitle C.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 
360

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: TRANS-CLT-0096-1

Organization1:Earthjustice

Commenter1:Abigail Dillen

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 8.2

Comment Excerpt Text:

Over the past year, my colleagues and I have researched the State regulations, such as they are, 

that are currently on the books to guard against water pollution from coal ash. We have 

documented extensive damage from coal ash around the country. And the picture that we see is a 

wholesale regulatory failure, and that failure is leaving us with a national legacy of 

contamination. 

Given the history here, the claim that EPA can leave regulations to the state simply is incredible, 

and we will be making that case in detail to you in written comments. 

But since we are in Charlotte, let's talk about North Carolina, which is a perfect example. There 

are more high-hazard dams here than in any other state in the country, but there are no 

regulations that apply to coal ash ponds and surface impoundments. That means no engineering 

and safety requirements, no required groundwater monitoring, no financial assurances, and no 

post-closure requirements for the many aging facilities that will soon have to retire. And you've 

heard of that from somebody living near the Riverbend plant here today what happened to that 

ash pond. There is simply no regulations in place to ensure that it will be closely -- or safely 

closed and monitored. 

North Carolina should know better. Going back to the 1970s, regulators knew that selenium from 

coal ash was poisoning Belews Lake, eventually killing off 16 of its 20 resident fish species. This 

is just one of several known damage cases in this state, yet there has never been a real attempt to 

get a handle on the coal ash problem. And let's be clear, North Carolina is not an outlier. 

I'm going to end with a brief story about Pennsylvania, which supposedly has the most 

progressive coal ash regulation in the country. A couple of months ago, I was in the town of La 

Belle, and the highest point in La Belle is the coal ash ridge that surrounds a big ash -- it's a little 

bit bigger than a pond; it looks more like an ash lake. And when it rains, storm water flows down 

through the ash flooding the back yards and the basements of the people who live below it. When 

the wind blows, they look up and they say they see a gray Sahara of ash blowing around. It 

blows under their windowsills, it blows into their barbeques, into their garages, into their cars. 

Of 40 people I met at a town hall meeting, ten were suffering from cancer, and they all lived in 

the same cul-de-sac under the ash dump. These are people who do not have the means to pick up 

and move. They are trapped. And they are asking me, why aren't their rules against this? 

On their behalf, I implore you to make those rules under Subsection C

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 
361

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: TRANS-CLT-0113-1

Organization1:MACTEC Engineering and Consulting

Commenter1:Guy Winebrenner

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Based on our experience in seven states where coal is used to fuel a significant portion of the 

electric generation output, we have found that the state regulatory programs controlling dam 

safety, landfill design, groundwater protection, at both point and nonpoint source discharge 

provide an adequate framework to provide for public safety, property protection and 

environmental preservation when properly applied.

Moreover, the State regulatory programs are designed to take into consideration the specific 

geographic, geologic and water resources features that can affect the proper operation of CCR 

storage facilities. Consequently, we see no reason -- no compelling reason to move the control of 

CCR under the hazardous waste management requirements of the Subtitle C.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 
362

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: TRANS-CLT-0115-1

Organization1:South Carolina Coastal Conservation League

Commenter1:Nancy Cave

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

South Carolina has 14 coal generating plants producing over 2.1 million tons of ash annually. 

This ranks South Carolina 20th in the country for coal ash generation. The coal ash is placed in 

22 ash ponds at nine plants and at least five landfills. And according to your 2007 assessment, 

six of these ponds and landfills are unlined and one is clay-lined. Of these sites six do not have 

leachate systems. All of the plants are sited on rivers and lakes; rivers that are sources of 

drinking water for communities up and down their length. 

In Georgetown County where I live the state- owned utility, Santee Cooper, operates the Winyah 

power station with 6 ash ponds on the Sampit River. In Horry County, Santee Cooper operates 

the Dolphus M. Grainger power station with two ash ponds on the Waccamaw River which 

supply drinking water to the communities of Myrtle Beach and Georgetown, just to name two. 

The Environmental Integrity Project found that the Grainger ponds contaminated groundwater 

near the Waccamaw River with arsenic 91 times the state drinking water standard. Ruling coal 

ash to be a hazardous waste is a precautionary action that will protect the waters of South 

Carolina and the nation, but more importantly a Subtitle C ruling will protect the children and 

adults from toxins that according to EPA's own studies cause serious health threats

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0123-2

Organization1:CROP PLUS

Commenter1:April Watts

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

I would like to speak about New York State DEC -- Department of Environmental Conservation 

policy and practices. In 2007, CROP PLUS filed a Freedom of Information Request to New 

York DEC and received the following information: One, NRG Dunkirk Power did not file any 
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reports from 2002 thru 2007 for Coal ash use under BUD 122-0-34. The information submitted 

10-31-2008 was incomplete and contradictory to previous records. Two, the DEC forms request 

yearly quantity of solid waste beneficially used. The form has a note, quote, "please attach to this 

form all reporting information required by the BUD." Nothing was attached to any files received 

and no periodic testing was reported. Three, the DEC form for the beneficial use of coal ash 

under Regulation 360-1.15 has all cement, concrete and concrete products listed under bottom 

ash and not under fly ash. Both fly ash and bottom ash are recorded as bottom ash on several 

reports. 

In April 2009, Daniel David, Regional Engineer for the Environmental Quality Region 

responded in a letter to Chautauqua County Executive Gregory Edwards, quote, "Sampling and 

analysis is no longer required in order to beneficially use coal ash as a traction agent." Mr. 

Daniels referred to Regulation 360 and predetermined BUDs that required no testing. However, 

Bottom ash reuse as a traction agent is being reported under BUD 122-0-34 which does require 

testing. 

Also, in April 2009 New York DEC Commissioner Alexander Grannis responded to U.S. 

Congressman Brian Higgins saying "The use of coal combustion bottom ash by NRG Energy's 

Dunkirk Power Facility is addressed by a 1993 DEC regulation that supersedes the previously 

granted BUD 122-0-34. This regulation does not require NRG to undertake any chemical 

analysis." 

Which is it? Is this BUD superseded by or incorporated into the regulation? How can it be 

superseded by Regulation 360 when Part A of the regulation states: "Beneficial use 

determinations granted by the department before the effective date of this section shall remain in 

effect, subject to all conditions contained therein, unless specifically addressed by subsequent 

department action." No subsequent department action has been reported. 

Forms and records need to be updated. Coal combustion ash should not be reused in residential 

areas without periodic testing to guarantee human and environmental health and safety. 

In closing I emphasize that many state regulations are not requiring proof of protection. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0138-1

Organization1:South Carolina Chapter of Sierra Club

Commenter1:Susan Corbett

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In South Carolina, as you've heard from previous folks, we have a serious problem. I think there 

was a contingency here this morning from the area around Columbia where I live. She had a little 

bottle of water. I was at a DHEC hearing a few months ago where we challenged their attempt to 

deregulate or to lower these standards on arsenic being released from the SCANA coal ash pond 

there in lower Richland County. I basically heard the DHEC officials say, "The dilution is the 

solution to pollution." Over 200 folks turned up at that hearing in Lower Richland County to 

speak out against the amount of arsenic and other toxins being dumped into the watery river from 
364

that coal ash. There are no markings in that river; people can paddle and fish right up at the area.

I think Representative James Smith was familiar. He was here this morning, talked about the 

amount of seepage seeping under that pond into the watery river. 

The sad fact is, the Department of Health and Environmental Control in South Carolina does not 

have the regulatory backbone to stand up to SCANA and other utilities that are managing these 

ponds, or not managing these ponds. There have been numerous citations over the years. They 

have had years of this going on, and virtually nothing has been done to change the pattern of 

leakage.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0145-1

Organization1:CROP PLUS

Commenter1:James Hofter

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

I'd like to speak about New York State DEC policy and practices. BUD 122-0-34 granted in 

1992, allows coal bottom ash from two power plants to be used as a traction agent with the 

following conditions: A sample of the ash may be obtained and analyzed twice annually for 

TCLP metal. If the results indicate a metal will have an adverse impact on water quality, the 

DEC will immediately notify and new samples must be analyzed. Accumulated ash cannot be 

used and must be managed properly. A semi-annual report must be submitted to the DEC to keep 

track of the amount of ash reused throughout the state. This report must list the users of the ash 

and quantities each user receives. 

Moreover, the BUD was updated in 1996 to allow the use of bottom ash as the surface material 

for running tracks. Regulation 360-1.15 was adopted in '93. Part A states: BUD's granted by the 

Department before the effective date shall remain in effect subject to conditions contained 

therein. Part A is not being enforced. DEC reports this BUD has been incorporated in regulation 

360. If not into part A, then surely it must be incorporated into part D, which states: The 

generator or proposed user of solid waste may petition the DEC, in writing, to beneficially use 

the waste. They must provide a demonstration that management of solid waste will not adversely 

affect human health, safety, the environment, and natural resources by providing a solid waste 

control plan. This was described as follows: Procedures for periodic testing of the solid waste, a 

description of storage and maximum anticipated waste inventory not to exceed 90 days before 

using. Procedures for run-on and run-off control of the storage areas. None of these being 

required of BUD 122-0-34. Crop Plus presented proof of pollution.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0004-1

Organization1:Texas Commission on Environmental Quality

Commenter1:Earl Lott
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Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.3

Comment Excerpt Text:

Texas has one of the highest number of coal facilities in the United States and consequently the 

largest producer of coal combustion residuals in the nation. We believe that Texas has adequate 

and effective regulations to safely manage coal combustion residuals. Texas has promulgated 

effective legislation and has been at the forefront of recycling initiatives for the use of coal 

combustion by-products in the industry. Coal combustion recycling rates in Texas are as high as 

60 to 70 percent. 

EPA has acknowledged that Texas has been a model state on this issue, and that was recognized 

in the early '90s. Recycling rates have dramatically improved in Texas, from around 20 to 25 

percent in the early '90s to the rate of 60 to 70 percent today. We've done this -- achieved this 

through progressive legislation, by diligent work with -- cooperating with state agencies like the 

Texas Department of Transportation, as well as working with industry groups and utilities on 

building these markets. Also, Texas coal-fired facilities generally produce high-quality coal 

combustion residuals that are appropriate for a number of beneficial use applications in highway 

construction building products and infrastructure building materials. In most areas of the state, 

Texas has developed a fly-ash-based concrete market producing high-quality products.

We believe that the EPA's proposed options to regulate coal combustion residuals under the 

Subtitle C of RCRA threatens the great strides that Texas has made in dramatically improving 

the coal combustion recycling rates in Texas. The TCEQ has effective regulations in place to 

safely manage coal combustion residuals. Even though permits are currently not required, we do 

require registrations and monitoring of the material, which also provides safeguards in 

preventing the impacts to health and the environment. Texas regulations require the 

characterization, classification, and submittal of that notification of the waste prior to disposal. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0040-2

Organization1:Association of Electric Companies of Texas

Commenter1:Walt Baum

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.3 3.1.2

Comment Excerpt Text:

The Texas Commission on Environmental Quality oversees the design, construction, monitoring, 

reporting, and final closure of all CCR disposal facilities. TCEQ's robust state regulatory 

program ensures the disposal and reuse of CCRs are conducted in a manner that is protective of 

human health and the environment.

In summary, AECT strongly opposes the regulation of CCRs as a hazardous material and 

believes that Texas has a protective program that does not need a new federal program.
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Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: TRANS-DAL-0061-1

Organization1:Luminant

Commenter1:Usha Turner

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The state of Texas, through the Texas Commission on Environmental Quality, already has a 

comprehensive regulatory program for the storage, the disposal of CCRs, that oversees the 

design, construction, monitoring, reporting, and final closure of all CCR disposal facilities.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: TRANS-DAL-0071-1

Organization1:

Commenter1:Rogers Dennis

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:
367

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:

We know about by-products from coal combustion such as arsenic, lead, boron, selenium, 

mercury, cadmium, thallium, and many other pollutants at levels that put humans and animals at 

risk. Coal ash dumped in unlined or clay-lined ponds and landfills pose the greatest danger. 

When coal ash is deposited in landfills or impoundment structures, coal ash can be leached into 

the groundwater. 

In West Texas, it can be blown by the wind throughout the watersheds and end up being washed 

into our surface water reservoirs when it rains. Whereas, underground water is scarce to 

nonexistent in West Texas, safe surface water from limited rainfall becomes extremely important 

to all life, including humans, animals, birds, and fish. 

At least 23 states have poisoned surface water and groundwater supplies caused by improper 

disposal and storage of coal ash. Texas is second in the nation in coal ash generation. There are 

no leachate collection systems in Texas, and there is no groundwater monitoring. New 

Earthjustice/EIP, Environmental Integrity Project, show additional coal ash contamination in our 

state and the entire country. 

According to the EPA damage case assessment, proven damage cases in Texas include Brandy 

Branch coal ash dump in Harrison County, Southwestern Electric Power Company coal ash 

dump in Titus County, and unpermitted discharges in Texas Utilities Electric Martin Lake 

Reservoir in Rusk County. All three have leaked dangerous levels of selenium. 

Coal ash is inexcusably considered exempt waste under an amendment of the Resource 

Conservation and Recovery Act, RCRA. This is not acceptable. Industry is so diverse that it 

cannot regulate itself and consequently needs to be regulated with standards that protect the 

public as well as itself. 

Regulations have been unsuccessful in Texas and many other states. Regulation needs to be on a 

national level to include protective regulation of all states. The EPA must regulate coal ash to 

address the risks from the disposal and storage of the wastes generated by electric utilities. 

The EPA needs to support the RCRA Subtitle C designation to classify coal as a hazardous 

waste. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 
368

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: TRANS-DAL-0083-1

Organization1:

Commenter1:Eric Pastor

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

I've never previously provided formal comment on an EPA regulation, but after reviewing the 

proposed CCR rules and, more importantly, reading comments that characterize state regulatory 

agencies as not adequately monitoring CCR disposal sites and having refused to do their jobs, I 

felt compelled to set the record straight for Texas, based on my firsthand experience. 

In my opinion, the rules and guidance of the Texas CCR management program as administered 

by the TCEQ are sound, and the TCEQ program staff are dedicated and competent. To support 

this conclusion, let me first start with a brief review of the process that must be followed before a 

CCR disposal facility can be used. 

Under Rule 335.6 of Title 30 of the TAC, a person that intends to store, process, or dispose of 

industrial solid waste such as CCR must provide 90 days' prior notice to the TCEQ. Elements of 

this notification, which we often refer to as a registration package, include information regarding 

waste composition, waste management methods, facility engineering plans and specifications, 

and the hydrogeologic setting of the proposed disposal facility. 

The registration packages that we produce in my firm usually include the groundwater 

monitoring plan, closure plan, and a post-closure inspection and maintenance plan. Once 

submitted, registration packages are reviewed by TCEQ Waste Permits Division. I have found 

these reviews to be thorough, detailed, and comprehensive. 

Comments that we have received on registration packages have ranged from request for 

justification and monitoring well locations and statistical groundwater data valuation procedures 

to details on waste-handling methods. 

These regulations are supported by a series of technical guidance documents that cover topics 

ranging from site selection to landfill design, construction and groundwater monitoring. These 

documents, which were first developed in the 1970s, are regularly reviewed and updated by 

TCEQ staff to ensure they are current. 

Potential releases from CCR disposal facilities do not go unchecked but are managed underneath 

a well-established Texas risk reduction program which has a nearly 15-year track record of 

success in directing the investigation and remediation of environmental releases, and is 

supported by more than two dozen guidance documents. 

Last, I would like to note that in my frequent interactions with the engineers and scientists of the 

TCEQ programs, although I have not always been in complete agreement on all technical issues, 

I have found them to be solid professionals who take their mission of protecting health and the 

environment very seriously

Response: The Agency acknowledges and appreciates the comment. 
369

Comment Number: TRANS-DAL-0094-1

Organization1:

Commenter1:Lev Guter

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

So the contamination that's happening right now -- I'm sure you've heard it before today, this 

report cited -- but it's In Harm's Way, and it was done by the Environmental Integrity Project. 

And the first two cases are from Arkansas. The -- the first one is the Independence Coal Plant. 

And the contamination of the 34 monitoring wells have been documented for widespread 

groundwater contamination. And we're talking heavy metals, mercury. That's 34 wells. That's --

that's drinking wells that people are consuming every day. 

And the second problematic coal ash site that was documented in the report is from Flint Creek. 

And that's another coal ash site where there has been demonstrated damage to groundwater 360 

feet away from the actual site. So this water is -- it's moving, and people are drinking it. 

Just quickly, the Arkansas Department of Environmental Quality follows, in general, the 

minimum standards that the federal regulations impose. There are really smart people, 

hardworking people at ADEQ, but we hear time and again, you know, the regulations aren't 

there. If you want us to have stricter regulations, change the regulations. Well, that's why we're 

here today. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0097-2

Organization1:NRG Energy

Commenter1:Jeffrey Davis

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

We support the comments made by the Texas Coal Combustion Products Coalition and the 

Utilities Solid Waste Activities Group. 

Texas has a strong solid waste disposal program, and it has successfully managed disposal of 

CCRs under this program for decades. The program in Texas provides the regulatory oversight 

necessary to ensure that management of CCRs is protective of human health and environment. 

NRG requests that EPA work with the states and develop a program that recognizes the role of 

each state to develop their own regulatory programs to ensure compliance with the newly 

adopted federal criteria.
370

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0122-1

Organization1:

Commenter1:Whitney Pearson

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.2.2

Comment Excerpt Text:

At least two sites in Oklahoma show that currently those who burn coal are being irresponsible. 

The state regulatory agencies have failed to act, and we need strict, clear, enforceable regulations 

of Subtitle C. 

In Oklahoma, three agencies regulate the fly ash dump in Bokoshe, as you heard earlier. For 

almost two years, citizens who are impacted daily by the fly ash have called these agencies to fix 

the problems in Bokoshe, a problem that these agencies permitted to get out of hand. 

Many of us in Oklahoma have called our elected and appointed officials but only to find out -- to 

ask them why they are not addressing the situation in Bokoshe. They tell us that they don't have 

the authority or they don't see any violations or that it's someone else's responsibility. 

I've been to the fly ash pit in Bokoshe, Oklahoma, and I've seen documentation of the violations; 

and the failure of state agencies is obvious. The failure of state agencies is also apparent in 

Oologah, Oklahoma, where, for 30 years, the coal-fired power plant has disposed of its fly ash in 

an unlined pit. 

No one monitored the groundwater there until 2008, and the data shows the contaminants have 

leached into the groundwater and there are heavy metals exceeding both federal and state 

maximum containment levels in the groundwater. 

The operator of the plant has acknowledged that it has contaminated groundwater beneath its 

facility, but unfortunately they claim that there is no proof that contamination has spread offsite. 

Isn't it clear that groundwater contamination doesn't confine itself within property lines? Isn't it 

clear that if the operator were acting responsibly, it would determine the extent of the pollution 

instead of denying its existence?

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0126-1

Organization1:Public Citizen's Texas office

Commenter1:Tom Smith

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

But what's clear in Texas is that we have a significant level of contamination. I think it's now up 
371

to 16 different lakes or bodies of water, almost all of which are downgradient, as opposed to 

downwind, from coal plants. The source of this is mysterious to all of us. It could be the 

emissions coming out the top of the stack or it could be leachate coming out of the bottom. 

The problem is we don't know. We don't have adequate monitoring reported annually in ways 

that are understandable to folks around the plants, nor do we have federal supervision to make 

sure the data we're getting are accurate and adequate. We think there is a real advantage to 

Subtitle C in that it does require federal enforceability.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0028-4

Organization1:Great River Energy

Commenter1:John Weeda

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

GRE has participated in research and contributed proactively to regulations administered by the 

State of North Dakota Health Department, provide proper design for disposal facilities in North 

Dakota. These include lining and effective management and monitoring of the landfills, and this 

applies to our stations in North Dakota. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0049-2

Organization1:Arizona Public Service Company

Commenter1:Scott Davis

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In Arizona, coal ash disposal units are regulated under the Department of Environmental Quality 

Aquifer Protection Program and the Department of Water Resources Dam Safety Program. 

Working in tandem, these programs impose stringent requirements to ensure the environment 

and public safety are protected.

Response: The Agency acknowledges and appreciates the comment. 
372

Comment Number: TRANS-DEN-0060-1

Organization1:Wyoming Department of Environmental Quality (DEQ)

Commenter1:Bob Doctor

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.4

Comment Excerpt Text:

I manage Wyoming's solid waste permitting and corrective action program and Wyoming DEQ. 

I'm here with a written statement, so I'll try and be quick here. 

We regulate -- and I'm sorry. We use the W word in Wyoming still -- coal combustion waste, 

which is regulated as a Subtitle D waste under rules that mirror EPA's Subtitle D requirements 

for municipal solid waste. We regulate it under three separate programs in the DEQ in Wyoming. 

Surface impoundments are regulated both by our water quality division as wastewater ponds and 

under our state engineer's office under dam regulations for the construction of dams and dikes in 

the state engineer's office. 

These two programs both require permitting for all these impoundments. They have various 

degrees of monitoring, engineer certification, inspections a minimum once every five years of 

these impoundments. 

I can speak more to solid waste since that's the program I manage. We permit these things almost 

like we do municipal solid waste landfills with virtually the same type of requirements for public 

participation, liners, other engineered containment systems such as caps, leachate management. 

We also require characterization of the waste. We encourage especially that. We require that for 

any beneficial use. We try to encourage beneficial use through our solid waste rules and 

regulations. 

We also have requirements for monitoring corrective action. Again, another public requirement 

for participation if facilities must go into public corrective action mode. 

We also require closure and long-term post-closure care for these facilities that amounts to about 

the same 30 years of post-closure care that you would give to a municipal landfill. 

We believe that states are in a better position to regulate coal combustion waste than the EPA is. 

Most of these decisions, many are site-specific conditions that require site-specific knowledge of 

soils, groundwater, waste type, that stuff. We've heard that not all CCW is the same. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0099-2

Organization1:Colorado Department of Public Health and Environment

Commenter1:Joe Schieffelin

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:
373

As background, the solid and hazardous waste program regulates all disposal and beneficial 

reuse of coal combustion residuals in Colorado. We have representative analytical data on the 

coal combustion residuals produced in Colorado, and no data has ever indicated levels of 

contamination close to those that would make the residuals hazardous waste.

We have groundwater monitoring data around coal combustion residuals dewatering and 

disposal areas, and no data indicates a release to groundwater has occurred.

However, if a release were to occur, we have enforcement authority to rapidly and effectively 

deal with noncompliant situations, including releases to soil, groundwater, surface water, and 

exposures to people. This includes administrative order authority with injunctive relief, 

corrective action authority, and penalties up to $10,000 per day per violation. Colorado actively 

uses these authorities in implementation of the solid waste program.

Through this same regulatory construct, we safely and effectively regulate municipal solid waste 

every day, a waste stream with higher hazards than coal combustion residuals because it includes 

household hazardous waste, heavy metals, and organics, acidic, and alkaline materials.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0003-1

Organization1:Southern Alliance for Clean Energy

Commenter1:Josh Galperin

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Now, as Dr. Smith said, we've compiled this report on the state of coal ash regulation in 

Tennessee. It's important to understand how states regulate coal ash in order to understand the 

differences between what will happen -- whether Subtitle C or Subtitle D is ultimately 

promulgated. 

This report shows a surprising lack of oversight in Tennessee, a state that should be very 

proactive on coal ash regulation because of the Kingston disaster. So I want to just point out a 

few specifics that I've found in researching Tennessee's laws in some depth. 

First, the laws only specifically address coal ash in two instances. The first instance happens to 

also be the only -- the one and only change that has been made to Tennessee's coal ash 

regulations since the Kingston disaster. And as it happens, this particular change has nothing to 

do with the disaster itself. 

The change that I'm talking about, the first time that coal ash is mentioned in Kingston's law --

excuse me, in Tennessee's laws is a provision in the solid waste laws which requires a liner and 

final cap on coal ash landfills. Sounds great. It's a very important provision, except unlike much 

of the rest of the solid waste laws, the exemptions contained therein swallow the entire rule. The 

liner and cap is not required for structural fill; it's not required for agricultural uses or engineered 

uses; and most importantly, the "new safeguard" -- I'm putting quotes around that for the record -

- the "new safeguard" doesn't apply to surface impoundments, which are the type of ash storage 

that is clearly the most dangerous. 
374

The second specific mention of coal ash in Tennessee's law is with regards to permits by rule. 

Certain uses of coal ash are allowed without a true permit in Tennessee, without being subject to 

public scrutiny, and without the more stringent provisions of the normal permit by application 

process. So this is two instances only where Tennessee's laws actually address coal ash 

specifically, and both provide for broad exemptions over permissive uses of coal ash without 

substantial safeguards. 

Moreover, Tennessee does not regulate ash at all when it's stored in surface impoundments. So, 

to be clear, surface impoundments like the one in Kingston, the ash that's stored in those 

impoundments and those impoundments themselves are completely unregulated. The Safe Dam 

Act does not regulate these impoundments, the solid waste laws exempt impoundments, and 

NPDES permits only regulate the discharges of wastewater from those impoundments. 

So there is no requirement for structural stability, groundwater monitoring, unit citing, leachate 

collection, closure, post-closure care, financial assurances on impoundments like the one at 

Kingston. 

So, rather than going into further details, Dr. Smith submitted a copy of this report. If you have 

any further questions on it, please feel free to contact me at the Southern Alliance for Clean 

Energy. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: TRANS-KNX-0016-1

Organization1:Black Belt Citizens Fighting for Health and Justice

Commenter1:Barbara Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Local county government, the ones that begged for the coal ash to get the money, is run like a 
375

gang. If you cross them, none of your family and friends will ever get a job in Perry County. If 

you cross them, you'll get ostracized. If you cross them, you can bet the police departments will 

be on your back. People are afraid, and I can tell you it's with good reason. People are threatened 

with arrest if they speak out even at public meetings. And right now it's being litigated because 

the Perry County Commission has violated the Alabama Open Meetings Act.

The state -- the Alabama Department of Environmental Management is weak and underfunded. 

It's a permit machine. It's political. They never should have issued a permit for that landfill in the 

first place. Already the landfill owners have filed for bankruptcy. Already there's been illegal 

dumping of the leachate. We can't count on them.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0059-2

Organization1:Tennessee Riverkeeper

Commenter1:David Whiteside

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Currently, in the states of Tennessee and Alabama, we have conflicting standards. In Kingston, 

Tennessee where the TVA's coal ash disaster was, coal ash waste is being treated as hazardous 

and extremely dangerous where -- to the point where the trucks that leave the facility have to go 

to great lengths to make sure that this material is washed off of them. 

Once it's trucked down to Uniontown in Perry County, Alabama, it has a different set of 

standards. It is not treated as a dangerous material down there. It is treated much more 

haphazardly. And one of the things we're asking the EPA to do in -- in regulating this as 

hazardous waste will be to come up with uniform federal standards that the states could abide by 

to give a consistency between Tennessee and Alabama. 

Right now it's just not fair that one state can consider it a toxic substance and the other state is 

not as concerned about it. I -- that's extremely conflicting and we need guidance from the 

government to provide some sort of consistency among the states. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: TRANS-KNX-0065-2

Organization1:Southern Alliance for Clean Energy (spoke as employee and citizen)
376

Commenter1:Katherine Stokes

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1 9.3.11

Comment Excerpt Text:

What we're talking about today are the wet impoundment ponds or the huge dry landfills of coal 

ash, the type that flooded the land, houses and river of our neighbors in Roane County, 

Tennessee. This type of coal ash that is stored in impoundment ponds or landfills should be 

regulated by EPA's proposed Subtitle C. This ash hasn't been treated and is not your regular 

household waste as Subtitle D would suggest that it is. 

As we witnessed with the TVA coal ash spill, coal ash is not effectively regulated by the state of 

Tennessee. As we've learned from this disaster, the siding and structural stability of these coal 

ash storage impoundments are not regulated. Neither is the potential for these chemicals to 

penetrate groundwater. 

As we've witnessed, we know the regulations are made as suggestions or guidelines rather than 

enforced, as they would be in Subtitle D, that they are also not followed. EPA estimates Subtitle 

C could cause a 0.8% increase in our electricity bills. We need to spend a little bit of money now 

to regulate coal ash as insurance so that we won't see another very expensive, life-destroying and 

very preventable accident like we saw almost two years ago here in Tennessee. 

Our electricity providers aren't afraid of taking risks because the cost is sent down to the 

customers. We are the ones that carry the burden. We're the ones who paid for the clean-up of the 

Kingston coal ash spill, and we need federal backing so that this doesn't happen to us again. 

EPA Sub -- suggested Subtitle C is the best choice for Tennessee's safety, health and wallets. It 

will save us money and distress in the long-run by helping us avoid another disaster.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0112-2

Organization1:University of Tennessee

Commenter1:Gregory Button

Commenter Type: Academia

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1 4.2.4

Comment Excerpt Text:

Unless the EPA adopts the above-mentioned option, our nation's citizens and our environment 

will continue to remain vulnerable to the toxicity of coal ash. The TVA ash spill has dramatically 

and tragically demonstrated the failures of relying on a patchwork of state regulation. 

It is imperative that the EPA have direct oversight over the generation of storage, transportation, 

and the disposal of coal ash in order to safeguard the public and the environment. Subtitle D 

would continue to rely on a state-by-state patchwork of regulations, which time and time again 

has proven to be inadequate. 
377

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0114-2

Organization1:Solar Valley Coalition

Commenter1:Brian Paddock

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

I spent earlier this year for three solid months, along with others, trying to get modern coal ash 

containment legislation passed in Tennessee. We had complete agreement by the time we'd 

finished negotiations with the state department. 

What happened was that the afternoon before the first committee hearing, the Chamber of 

Commerce lobbyist made two phone calls, and the bill never even got a motion the next day. 

With that kind of opposition form powerful interests, the inability of the state agency and the 

legislature to protect us is evident

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0016-3

Organization1:National Ready Mixed Concrete Association

Commenter1:Terry Jones

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

We, along with our state and national associations, believe that many states will establish their 

own new laws that further limit the beneficial use of fly ash. Here's an example: Maryland's 

already proposed a new law requiring any product containing fly ash to be disposed of in a 

facility authorized to accept fly ash.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0036-1

Organization1:

Commenter1:Rick Clewett

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:
378

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

I will use the findings of just-conducted study by the Sierra Club, Kentucky Waterways Alliance 

and Global Environmental to make this point. The study entitled, "Slow Motion Spills: Coal 

Combustion Waste and Water in Kentucky," found that the -- while 44 coal ash -- there are 44 

coal ash ponds in Kentucky, anything like adequate information was available for only eight. In 

these eight cases, monitoring records did not record all CCW contaminants. In some cases, the 

division had even allowed sites whose early records showed dangerous levels of toxici -- toxic 

heavy metals to stop monitoring those pollutants." 

Despite this disturbing failure of the state to collect and archive adequate information on water 

quality near coal ash facilities, the study was able to reach three resounding conclusions: (1) 

Existing data point -- data point to groundwater contamination caused by coal ash waste beneath 

every plant studied; (2) Kentucky regulatory program is not properly addressing this threat, 

instead, it's getting weaker; and (3) Kentucky is not comprehensively tracking where CCW 

contamination is going. 

I'm not -- I'm sure that in many states it is bad or worse. I -- this is -- I'm not out to -- to get 

Kentucky. That's not the point. I live here; my family lives here; many of my friends live here. 

We care what's happening to the people near the Cane Run facility, what's happening to the 

people near the Spurlock facility in eastern Kentucky. 

I'll just reference another study, "In Harm's Way: Lack of Federal Coal Ash Regulations 

Endangers Americans and Their Environment." The title says it all. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: TRANS-LVL-0045-4

Organization1:Duke Energy

Commenter1:Debbie Nispel

Commenter Type: Electric Utility Company
379

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Another significant flaw is that the allegations have been made without prior consultation with 

the very states whose programs the groups allege are deficient. The states are contesting this 

allegation and charging that activat -- activist groups have improperly characterized the 

effectiveness of their state controls

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: TRANS-LVL-0088-1

Organization1:League of Women Voters

Commenter1:Joan Lindop

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.4

Comment Excerpt Text:

Much of Kentucky is dotted with limestone caves, which means that ground water travels miles 

very quickly. It's very hard to know where that ground water will end up once it -- contaminated 

water is there. We know it will go into the Ohio River. The League of Women Voters urges EPA 

to take charge. Already, several organizations in Kentucky have requested that the US EPA take 

back primacy from the Kentucky Division of Water. The failure of the 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. 
380

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0126-1

Organization1:Cumberland Chapter of Sierra Club

Commenter1:Hank Graddy

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

My specific focus is on what EPA identifies as the central issue, the adequacy of the state 

programs. And based upon my experience, the Kentucky program is woefully inadequate and 

requires an EPA floor to sit so that Kentucky will finally try to do what is right. I have cited the 

slow motion spills as authority for the need for this regulation. 

They conclude Kentucky's regulatory program is not properly 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 actions, and continued to permit new 

ponds and landfills without proper controls. That report, slow motion spills, documents the 

magnitude of the problem, as far as we know it, the inadequacy of the state, and the fact that the 

problem is growing. 

My particular focus is on the Trimble facility where we submitted comments about the adequacy 

of a particular permit. We asked for the permit should regulate failures. The state answered, we 

don't regulate failures. We said the permit should regulate groundwater. They say, we don't 

regulate groundwater. We said the permit should regulate coal combustion waste futures. They 

say, we don't do that under the KPDS. It's time to learn the lesson.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0141-1

Organization1:Citizens Coal Council

Commenter1:Brian Wright

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

I've spent over a thousand hours reviewing permits, ground and surface monitoring records, 

scientific studies, and state regulations for coal combustion waste disposal sites. My research has 

revealed a repeated pattern of failure by states to address the risks posed to human health and the 

environment by these wastes. 

My own home state of Indiana, state regulators and site operators ignored numerous warning 

signs of contaminations at the R520 landfill and the Gibson power plant. As a result, the 

communities of Mount Carmel and the town of Pines lost their drinking water supply due to 
381

contamination from these wastes. 

Despite these two serious failures in state regulations on CCW, the state has refused to make any 

changes to their state rules on these wastes. In fact, impoundments in Indiana remain exempt 

from solid waste regulations. And it's not just Indiana that has a bad track record when it comes 

to these wastes. 

In 1999, I did a state-by-state survey of state regulations on coal ash, and what I found is almost 

across the board for impoundments failure to implement even the most basic environmental

safeguards, such as groundwater and surface water monitoring for coal ash disposal sites. Ten 

years later in 2009, I did the same survey and I found no significant improvement in regulations 

for these wastes, despite the mounting record of damage. 

People trust their state agencies to protect the environment and their health. The state agency 

repeatedly violated that trust when it comes to CCW. Now they want to be entrusted with 

implementing Subtitle D regulations when their track record shows that doing so would be a 

great disservice to the people living around these facilities

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: TRANS-LVL-0145-2

Organization1:

Commenter1:Barbara McKasson

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 6.1.1

Comment Excerpt Text:

What is happening in my state of Illinois is a prime example of why we need the U.S. EPA to 

implement regulations for coal combustion waste. The state of Illinois has more contaminated 

sites from the inappropriate disposal of coal ash than any other state. A case in point is the 

situation at the Southern Illinois Power Cooperative, SIPC, at the Lake of Egypt south of Marion, 
382

Illinois near where I live. The holding ponds at SIPC are unlined and leaking into the 

groundwater. The plumes of toxic water have now spread off of SIPC's property and onto 

people's private land. 

According to a report on damaged cases of contamination from improperly disposed coal ash, 

monitoring wells by the SIPC power plant have registered maximum concentrations of cadmium 

that are 35 times higher than the federal acute water quality standards and up to 352 times higher 

than the federal chronic water quality standards. Also, recent data on pond discharges to Saline 

Creek show high concentrations of aluminum, boron and manganese. This was documented in 

the report "In Harms Way: Lack of Federal Coal Ash Regulations Endangers Americans and 

their Environment." 

Actually, only cadmium, boron, iron, and sulfate are being routinely monitored -- monitored at 

the SIPC site. Other toxics that are found in coal, such as arsenic, mercury, selenium and 

chromium are not even being monitored at the SIPC site. 

In addition, people I know who live in the subdivisions surrounding Lake of Egypt tell me that 

there are at least 20 trucks a day carrying coal ash from the power plant property to off-site areas. 

One off-site area is an abandoned strip mine north of Williamson County Airport where the toxic 

coal ash is being dumped. There is no monitoring well, there are no liner and no state regulations 

to keep the toxic substances in this ash from seeping into the groundwater and nearby wells. 

Another concern is the decades-old coal ash ponds by SIPC are right by Lake of Egypt, which 

provides drinking water for about 10,000 people who live around Lake of Egypt. Local citizens 

in another area by Joppa, Illinois testified that coal ash waste is being dumped in piles from 

another plant and blows into the air when it dries. Citizens living close to the dump site 

complained at the hearing at -- for permit for chronic and acute respiratory problems that they 

attribute to the coal ash blowing on their property. 

In December 2009, I attended a hearing concerning NPDES water discharge permit for the MetSouth Coal Combustion Waste disposal facility owned by Electric Energy, Inc. in Joppa, Illinois. 

At this hearing, officials with Illinois EPA explained that coal ash waste dump sites may require 

a solid waste permit from the Bureau of Land or they may be permit-exempt. In fact, the IEPA 

official explained that the only requirement for a coal ash waste landfill in Illinois is that the 

operator must provide Illinois EPA with documentation that a public official has been notified of 

the forthcoming dump. There is no opportunity for public input or debate. So, even though there 

is threat of toxic chemicals leaching into the groundwater from a dump, there is no special 

environmental consideration given to coal waste landfills. In fact, in Illinois, coal ash landfill 

requirements are less stringent that (sic) municipal waste landfills. Local citizens at the MetSouth hearing testified that coal ash waste is being dumped in piles, and blows into the air when 

it dries. Citizens living close to the dump site complained at the hearing of chronic and acute 

respiratory problems that they attribute to the coal ash blowing onto their property. 

I have also been contacted by Wesley Logan, who grew up in Joppa, Illinois, and still has many 

relatives there. Wesley's father, Bobby Logan, sued LaFarge Cement Company and Electric 

Energy, Inc. for putting coal ash on Liberty Ridge Road by his house in Joppa, Illinois. Every 

time a vehicle drove by on those roads, the ash would fly up in the air, and spread to nearby 

yards and houses. Bobby Logan, his wife and other people on those roads got cancer, serious 

respiratory problems and other health problems. 

These threats to public health from using coal combustion waste in ways that release toxic 

chemicals into our air and water with virtually no regulations to contain or filter the toxins is 

totally unacceptable. According to the investigative report titled "In Harms Way," done by the 
383

Environmental Integrity Project, many state governments have few or no safeguards to protect 

the public from the spread of these toxins. Illinois and other states that have lax regulations or no 

regulations on coal combustion waste are even taking waste from other states with stricter 

standards. Thus, putting the people in Illinois at greater risk from these toxins.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: TRANS-LVL-0152-1

Organization1:

Commenter1:Steve Wilkins

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Kentucky has already demonstrated that it cannot be entrusted to oversee the handling of coal 

ash. Your own agency has been critical of the Kentucky Department for Environmental 

Protection and its division of water. Kentucky has been very protective of any potential threat to 

the coal industry and that protection follows coal throughout its life cycle. Coal, the industry, is 

coddled while miners, mountains, waterways, communities, whole regions are sacrificed in 

pursuit of profits. 

Without federal oversight, I fear that Kentucky will do for coal ash what it has done with 402 

mining permits, favoring the coal life cycle over the environment it is supposed to protect. Do 

not allow Kentucky primacy in the oversight of coal ash. 

Response: The Agency acknowledges and appreciates the comment. 
384

Comment Number: TRANS-LVL-0154-1

Organization1:E.ON U.S.

Commenter1:Mike Winkler

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In Kentucky we've had regulations governing CCR landfills and beneficial reuse since 1992 and 

impoundment safety regulations for an even longer period. LG&E and KU have CCR 

management protocols in place that ensure regulatory compliance and protection of public health 

and the environment. The Kentucky regulatory program works very well. There's never been a 

significant spill from any LG&E or KU CCR facility or any other CCR facility in Kentucky. No 

LG&E or KU CCR facility has ever posed a problem for local water supplies. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0179-1

Organization1:

Commenter1:Fred Fischer

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:

I've spent 44 years in the construction industry, built all the sewers and streets in the central 

business district here, supervised the foundation of a 41-story building, the First National Bank 

building, and have supervised over 1,000 home -- homes and apartments. So, when I read several 

months ago about the details of the acreage, the depth and the liner in the coal ash pond, I was 

amazed and appalled. I know that we can't, for instance, design flood walls for 500 years, but 

liners are -- they're -- it's going to leak. It's only a matter of time before it gets punctured by 

something or it wears out. 

So, that said, our west end -- and again, I -- I agree because the west end is where the poor 

people are, it's where industry has set up shop. Lot of us believe anecdotally that there's a lot 

more cancer in our west end than there is in the rest of the community, and we can't afford more. 

Another citizen said something to the effect that Kentucky was bought and paid for by coal. I 

don't know about the whole state. I certainly know some politicians who aren't. I think the people 

who oversee the coal industry pretty well are. Because of that, I ask you to please institute 

Subtitle C. Let the feds do the job right, because Kentucky hasn't and won't

Response: The Agency acknowledges and appreciates the comment. 
385

Comment Number: TRANS-PIT-0003-1

Organization1:Mountain Watershed Association

Commenter1:Beverly Braverman

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Given the health impacts, treating CCW as a benign substance is not low cost. PA DEP recently 

issued the local summit mine fill permit, which is now being appealed in eastern PA's Schuylkill 

County. They issued it without a baseline monitoring. They issued it without monitoring wells 

and peoples' drinking water wells. Those drinking water supplies are downgradient. 

If this waste was designated a C waste, this irresponsible handling would end. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: TRANS-PIT-0074-2

Organization1:Clean Water Action

Commenter1:Tom Hoffman

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.4 4.2.1

Comment Excerpt Text:

It is our understanding that the EPA has two proposed regulatory options for coal ash - Plan C 

and Plan D. Clean Water Action is supporting the Strong Option, Plan C, that would provide 

basic environmental and public health safeguards backed up with federal enforcement and 

financial accountability. We need protection from coal ash cradle to grave and the Subtitle C 
386

option gives us that. We do not support the status quo option that relies on citizen suits or

possible state regulations for enforcement. 

Pennsylvania is a resource rich state, but our residents have and will continue to pay a high price 

for that. Streams that are no longer life sustaining. Air that sends kids to the hospital with asthma 

at four times the national rate. Flammable drinking water in peoples' homes. Leaving things to 

the state is not an option here in Pennsylvania. We are facing severe budgetary shortfalls and our 

DEP has been slashed to the bone. Our communities are facing serious 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 is 

necessary to regulate coal ash. Clean Water Action supports strong federal regulations on coal 

ash. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0098-2

Organization1:Center for Coalfield Justice

Commenter1:Raina Rippel

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Within our state, the Pennsylvania DEP regulations represent a lack of state regulatory oversight 

and enforcement, because PA's DEP advocates coal ash is beneficial. Given the known or 

suspected health consequences of major coal ash repositories, such as Little Blue, and probability 

that minefilling may leach into groundwater, such a beneficial use designation, is downright 

dangerous, and serves only to pander to industry's need for reuse or improper disposal of this 

toxic substance.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0102-1

Organization1:Pennsylvania Department of Environmental Protection

Commenter1:Mike Forbeck

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Pennsylvania has residual waste regulations in place that govern the transportation, storage and 

disposal of CCR. Their regulations are similar to the Commonwealth's RCRA Subtitle D 

authorized municipal waste regulations and have been in effect since 1992. CCR landfills that 

have been designed and operated in accordance with these regulations have not resulted in 
387

pollution to groundwater, surface water or air, and these are the same residual waste regulations 

that were used as a template for EPA's existing Guide for Industrial Waste Management. 

Pennsylvania's successful management of CCRs including tracking of historical waste analysis 

data generated over the last 30 years, does not indicate in any way the need for hazardous waste 

designation EPA is proposing. 

According to EPA, the design and performance standards for the proposed regulations will likely 

be the same no matter what regulatory scheme is chosen. The major differences are that EPA 

asserts such a designation is necessary for it to retain and exercise appropriate enforcement 

authority and EPA cannot require states to permit landfills under Subtitle D proposal. 

Pennsylvania regulations already require performance standards that exceed those outlined in the 

Subtitle C or D proposal. By current regulations, Pennsylvania also requires facilities to be 

permitted or authorized to manage CCRs. 

As to the need for the EPA enforcement, Pennsylvania's Solid Waste Management Act 

authorizes the utilization of state enforcement authority is warranted. The use of this approach 

has been successful for Pennsylvania, as evidence by the 96 percent compliance rate. In addition, 

EPA already has broad 7003 enforcement authority and, therefore, does not need the additional 

authority under Subtitle C. 

The detrimental effects of Subtitle C management are substantial and could effect beneficial use, 

cost and the capacity concerns for the disposal of this material. Pennsylvania continues to 

improve its regulations and, in fact, new regulations regarding the Pennsylvania use of CCRs are 

expected to be finalized later this year that incorporates recommendations from the National 

Academy of Sciences, which provides further evidence of the efficacy of Pennsylvania's current 

program.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

CommentWorks® Issue Report
388

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Section 7.1.1.3 - Enforcement and state oversight

Total Number of Submissions: 29

Total Number of Comments: 43

Comment Number: EPA-HQ-RCRA-2009-0640-01877-2

Organization1:

Commenter1: Jane M. Feibel

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The existing containment ponds holding the toxic coal ash at Labadie are already a threat to 

nearby residents both in their well water and in the air. Consider an increase of this waste to a 

million tons a year surrounded by levees that we know are not always good enough. Any leakage 

or flooding will threaten the water supply of that area, Jefferson County , as well as a large part 

of St. Louis County that draws it drinking water from the Missouri river .

AmerenUE says it will do tests to see if it the huge dump will be safe (by our outdated 

regulations) If The state and/or EPA should require independent studies for safety and not let do 

that testing themselves. . Have we learned nothing from our scientific knowledge, our natural 

history of massive floods, and bad history of corporate building, or are you and other protecting 

agencies too politically entwined, too self-serving, too stupid to see the obvious and act. Our 

nation has history and exposure and can look back and study the effects of industrial byproducts 

and waste. We have the technology to do this. We need coal ash management regulations that are 
389

derived from independent science and leaching studies that would be funded by the government.

We must have regulations which specify that coal ash waste cannot be landfilled in floodplains 

or areas in which it is probable that it will come in contact with water, migrate off site or be 

subject to erosion. AmerinUE wants to dump on a flood plain behind a levee. Our levees and 

dykes and coffer dams fail; very recent events are unfortunate proof of this. AmerenUE proposes 

to heap the liquid ash on top of compacted clay with a plastic liner encircledwith an earthen 

birm--in earthquake country. Leave the flood plains to the farmers. We desperately need 

regulations now that prohibit current or future disposing of coal ash waste and other toxic 

industrial waste in mines where it can leach into both water aquefors and surface water.

We need strong federally enforceable regulations of coal ash wastes from cradle to grave . 

AmerenUE is moving at lightening speed to take advantage of our outdated protections: weak 

zoning codes, vague regulations laws. They call it a ‘landfill’; it is a toxic dump. This could be 

stopped right now. But, will any of our government offices have the fortitude and daring to do 

this? Will they stop this in its track and design regulations that will require AmerenUE to build 

factories to convert its ash to products that are not toxic---this can be done--and not allow them 

just to dump the ash. Companies must be forced to dispose of their waste in a permanently safe 

way.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2009-0640-03444-10

Organization1:Kansas Department of Health and Environment

Commenter1: William L. Bider

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.2.5
390

Comment Excerpt Text:

In addition to the high degree of regulatory oversight by the KDHE solid waste permitting 

program, KDHE also routinely inspects these facilities. KDHE inspects all permitted solid waste 

storage or disposal areas at least one time per year. During inspections, all waste management 

practices are evaluated with respect to applicable regulations and permit conditions and the 

integrity of the containment systems is visually examined. On an as needed basis, KDHE solid 

waste permit engineers also visit these facilities to assess compliance related to design, 

construction, operations, and monitoring.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-05721-1

Organization1:Hodges, Harbin, Newberry & Tribble, Inc.

Commenter1: William F. Hodges

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2 4.1.1 4.2.2 4.4.5.2.1 7.1.2.5 10.4.2

Comment Excerpt Text:

In response to, the request, for comments and as a 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-characterized as hazardous waste. 

2 . Declaring this product a Subtitle C waste will bring the reuse market to a standstill due to the 

stigma EPA would be placing on the product as hazardous waste. 

3 . To safeguard public health, all Subtitle D criteria (both siting and design) should be required 

of the CCR. 

4. All future 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 than 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 comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. In addition, the commenter is 
391

urged to refer to the technical volumes of the response to comment document for a discussion 

of the technical issues raised in this comment.

Comment Number: EPA-HQ-RCRA-2009-0640-06260-108

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.3.7 9.4.2

Comment Excerpt Text:

The Commonwealth questions the low enforcement rate (48%) given for citizen and state 

lawsuits under RCRA. Kentucky has observed a much higher compliance rate with its current 

ash rules in 401 KAR Chapter 45. The state uses the solid waste permitting branch, the field 

office inspection staff, and the Division of Enforcement to require acceptable performance. 

Most, if not all, of the utilities strive to comply with existing regulations in order to present a 

good public image for the Public Service Commission as well as any Planning and Zoning 

hearings. The basis for this assertion by EPA appears to be that EPA believes absent its personal 

involvement in enforcement of CCR requirements, that enforcement will not occur by the states. 

In addition, it appears that EPA believes that its involvement in enforcement will result in better 

enforcement and compliance as contrasted to the states ability.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2009-0640-06260-115

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Enforcement of existing special waste requirements are handled similar to enforcement of 

contained landfill permit requirements. All permitting is done through the DEP Central Office to 

ensure consistency across the state. Operational inspections are performed by ten Regional 

Offices located throughout the state. Any enforcement actions identified by the Regional Offices 

are referred to a central Division of Enforcement for resolution.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06275-23

Organization1:Lansing Board of Water and Light (BWL) and Michigan State University 
392

(MSU)

Commenter1: Jeffrey L. Woolstrum

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.2.5

Comment Excerpt Text:

Part 115’s Requirements On CCR Disposal And Use Are Enforceable By State And Local 

Authorities.

The requirements imposed by Part 115 on the disposal and management of CCRs are enforceable 

by MDNRE, Michigan counties, and, in certain circumstances, municipalities. MDNRE is 

authorized to enter any licensed disposal area “for the purpose of inspecting or investigating 

conditions relating to the storage, processing, or disposal” of CCRs. [Footnote 24: M.C.L. § 

324.11516(3).] MDNRE is required to inspect each licensed disposal area at least four times 

annually and prepare a written inspection report. [Footnote 25: M.C.L. § 324.11519(3).] In 

addition, MDNRE, a county health officer, or any other law enforcement officer may inspect a 

vehicle that is transporting CCRs along a public road to determine if the vehicle is in compliance 

with Part 115 and the Part 115 Rules. [Footnote 26: M.C.L. § 324.11526.] In the event of a 

violation, MDNRE may issue a cease and desist order, [Footnote 27: The order may specify a 

schedule of closure or remedial action. M.C.L. § 324.11519(2).] establish a consent decree, issue 

a final order revoking, suspending, or restricting a permit or license, or issue an order summarily 

suspending a permit or license if the violation constitutes an emergency or poses an imminent 

risk of injury to the public health or the environment. [Footnote 28: M.C.L. § 324.11519(4).] A 

county health officer may also issue a cease and desist order or establish a consent agreement 

specifying a schedule of closure or remedial action. [Footnote 29: M.C.L. § 324.11519(2).] 

MDNRE, a health officer, or a law enforcement officer may order a CCR transportation unit out 

of service if it does not satisfy the requirements of Part 115. [Footnote 30: M.C.L. § 

324.11528(3).] The Michigan Attorney General may bring a judicial enforcement action against 

any person in violation of Part 115. [Footnote 31: M.C.L. § 324.11546(1).] A Michigan 

municipality or county may also bring a judicial enforcement action against any person in 

violation of Part 115 within its jurisdictional boundaries. [Footnote 32: M.C.L. § 324.11546(1).] 

The Michigan Attorney General, a county or a municipality may seek any appropriate relief, 

including injunctive relief, in such enforcement actions. [Footnote 33: M.C.L. § 324.11546(1).] 

In addition, a court may impose a civil fine of up to $10,000 for each day of violation and order 

the violator to pay natural resource damages and reimburse the State for its surveillance and 

enforcement costs incurred as a result of the violation. [Footnote 34: M.C.L. § 324.11546(2), 

(3).] In addition to civil fines, Part 115 imposes criminal sanctions on persons who violate the 

provisions of Part 115, the Part 115 Rules, or a permit, license or order issued under Part 115. 

Such a violator is guilty of a misdemeanor punishable by a fine of up to $1000 per offense and 

the costs of prosecution. [Footnote 35: M.C.L. § 324.11549.]

Thus, Part 115 imposes strict requirements on the use and disposal of CCRs, which are fully 

enforceable to state and local authorities. There is simply no need for federal oversight of these 

activities in Michigan.
393

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06315-25

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.2.5 4.4.9.3

Comment Excerpt Text:

viii. States Fail to Require Financial Assurances for CCR Landfills and Surface 

Impoundments.

Financial assurance for landfills and surface impoundments is a critical safeguard and an 

important tool for ensuring safe waste disposal operations. Fewer than half of the states 

surveyed, however, require financial assurances for all CCR landfills, and only four states 

mandate financial assurances for all CCR surface impoundments.

[see original comment for Table 19. Are Financial Assurances Mandatory for CCR 

Landfills?]

[see original comment for Table 20. Are Financial Assurances Mandatory for CCR Surface 

Impoundments?]

Response: The Agency appreciates and acknowledges this comment. In the proposal, the 

Agency stated that the RCRA subtitle D alternative did not include proposed financial 

responsibility requirements and that any such requirements would be proposed separately. The 

Agency solicited comment on whether financial responsibility requirements under CERCLA 

section 108(b) should be a key Agency focus under a RCRA subtitle D approach. While the 

Agency received numerous comments urging the Agency to establish financial responsibility as 

part of the subtitle D option, the CERCLA 108(b) option did not receive significant support. As 

discussed in the proposal and reiterated here, EPA will not be requiring financial assurance 

requirements as part of this rule. The Agency however will continue to investigate the use of 

other statutory authorities (e.g., CERCLA) to establish financial responsibility requirements for 

owners or operators of CCR landfills, CCR surface impoundments and any lateral expansion. 

Comment Number: EPA-HQ-RCRA-2009-0640-06315-36

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.2.2
394

Comment Excerpt Text:

2. The States’ Failure to Enforce Existing Subtitle D “Open Dumping” Guidelines has 

Resulted in the Proliferation of Illegal Open Dumps.

The RCRA subtitle D guidelines that apply currently to the disposal of coal ash are found in 40 

C.F.R. Part 257. [Footnote 140: Criteria for Classification of Solid Waste Disposal Facilities and 

Practices, 40 C.F.R. §§ 257.1–57.4.] The extent to which states are currently enforcing these 

guidelines offers a measure that EPA must use to predict the future effectiveness of subtitle D. In 

fact, the failure of any state to adopt these guidelines and the continuing failure of states to 

enforce the guidelines has resulted in the operation of numerous illegal “open dumps.” In short, 

given the lack of current subtitle D adoption and enforcement by states, the prognosis for new D 

guidelines is exceedingly grim. Today’s straightforward open dumping standards are routinely 

violated, yet these blatant violations appear to be wholly ignored by state regulators.

Under RCRA, states must prohibit any solid waste management practice or disposal that 

constitutes the open dumping of solid waste. [Footnote 141: 42 U.S.C. §§ 6944(b), 6943(a)(2).] 

RCRA distinguishes between two kinds of solid waste disposal facilities—sanitary landfills and 

open dumps. [Footnote 142: 42 U.S.C. § 6944.] Sanitary landfills have “no reasonable 

probability of adverse effects on health or the environment;” while open dumps are the solid 

waste disposal facilities that do present a risk of adverse effects. [Footnote 143: Id.] While 

RCRA clearly prohibits open dumps and the open dumping of solid waste, [Footnote 144: 42 

U.S.C. §§ 6941–49; 42 USC § 6945(a) (“Upon promulgation of criteria under section 6907(a)(3) 

of this title, any solid waste management practice or disposal of solid waste or hazardous waste 

which constitutes the open dumping of solid waste or hazardous waste is prohibited...”)] many 

CCR units have fallen through the regulatory cracks and are currently operating in violation of 

this federal prohibition.

Rules promulgated pursuant to RCRA’s statutory prohibition describe the criteria used to define 

open dumps. [Footnote 145: “Facilities failing to satisfy either the criteria in §§ 257.1 through 

257.4 or §§ 257.5 though 257.30 are considered open dumps, which are prohibited under [42 

USC § 6945].” 40 C.F.R. § 257.3.] The criteria pertaining to protection of surface water and 

groundwater are particularly relevant to coal ash disposal. In sum, a solid waste disposal facility 

or site will be deemed an open dump if (1) it contaminates an underground drinking water source 

beyond the solid waste disposal boundary, [Footnote 146: 40 C.F.R. § 257.3-4]or (2) if it causes 

a discharge of pollutants in violation of the Clean Water Act. [Footnote 147: Id. § 257.3-3.] 

Many CCR disposal sites are in violation of the criteria, and examples of these violations are 

described below. 

a. Open Dumping Established by Groundwater Contamination

The subtitle D guidelines define open dumps as solid waste management facilities that 

contaminate groundwater: “A facility or practice shall not contaminate an underground drinking 

water source beyond the solid waste boundary or beyond an alternative boundary. . . .” [Footnote 

148: Id.§ 257.3-4(a).] The regulation provides the following definitions to determine whether a 

facility meets this standard for constituting an “open dump.” To “contaminate” means to actively 

cause the exceedance of a maximum contaminant level (MCL) listed in Appendix I to 40 CFR 
395

257. [Footnote 149: Id.§ 257.3-4(c)(2).] “Underground drinking water source” means either an 

active drinking water supply or a potential drinking water supply, defined as any groundwater 

with less than 10,000 mg/L total dissolved solids. [Footnote 150: Id.§ 257.3-4(c)(4).] “Solid 

waste boundary” means the perimeter of the disposal area, which in most cases is an area smaller 

than the property of the facility housing the dump. [Footnote 151: Id.§ 257.3-4(c)(5).] An 

“alternative boundary” might be used instead of the solid waste boundary to monitor compliance 

with the open dumping prohibition. An alternative boundary can be established by a state or by a 

court, but only if the state or court “finds that such a change would not result in contamination of 

groundwater which may be needed or used for human consumption.” [Footnote 152: Id.§ 257.3-

4(b).] All of the above can be summarized by saying that any coal ash disposal or storage 

causing an exceedance of a listed MCL in groundwater that might be used for drinking water is 

prohibited. Like all subtitle D regulations, responsibility for the enforcement of this prohibition 

rests with the states and citizens. [Footnote 153: “The Congress finds with respect to solid 

waste...that...the collection and disposal of solid wastes should continue to be primarily the 

function of State, regional, and local agencies...” 42 USC § 6901(a). “Within one year of 

October 21, 1976, and from time to time thereafter, the Administrator shall...develop and 

publish suggested guidelines for solid waste management. Such suggested guidelines 

shall...provide minimum criteria to be used by the States to define those solid waste 

management practices which constitute the open dumping of solid waste or hazardous waste and 

are to be prohibited...” 42 U.S.C. § 6907(a).]

States have not been able to meet this enforcement responsibility, as seen by the large number of 

apparent violations of the open dumping prohibition. These include the following coal ash 

dumps:

Duke Energy’s Gibson Generating Station, Princeton, Indiana: Wells downgradient of the CCR 

landfill have shown levels of arsenic exceeding the Appendix I limit of 50 ug/L. [Footnote 154: 

Appendix I retains an MCL for arsenic that is outdated. It is important to note that the Appendix 

I standard is 5 times the current MCL of 10 ug/L. Despite the significantly higher arsenic 

standard, open dumping violations are still rampant at CCR disposal sites.] The Indiana 

Department of Environmental Management has not taken official action [Footnote 155: Envtl. 

Integrity Project & Earthjustice, Out of Control: Mounting Damages from Coal Ash Waste Sites 

(Feb. 24, 2010) at 19.] 

- Mirant’s Brandywine Coal Ash Landfill, Brandywine, Maryland: Levels of cadmium as high as 

500 ug/L in onsite groundwater significantly exceed the Appendix I MCL of 10 ug/L [Footnote 

156: Id. at 25.]

]- Consumer Energy’s Karn and Weadock Generating Facilities,Essexville, Michigan: Arsenic 

over 400 ug/L was detected in groundwater near the landfill and beyond property line. [Footnote 

157: Id. at 28.]

- Progress Energy’s Lee Plant,Goldsboro, North Carolina: Arsenic has been measured at up to 

440 ug/L in groundwater migrating toward homes less than half a mile away. [Footnote 158: Id. 

at 40.]

- Duke Energy’s Belews Creek Steam Station, Belews Creek, North Carolina: Groundwater 

monitoring since 2005 has shown arsenic exceeding Appendix I levels. [Footnote 159: Id. at 50.]

- UGI’s Hunlock Power Station,Hunlock Creek, Pennsylvania: Multiple downgradient wells 

have shown arsenic concentrations exceeding Appendix I levels, as high as 119 ug/L. [Footnote 

160: Id. at 81.]
396

- SCE&G’s Wateree Station in Eastover, South Carolina: On-site groundwater at over 100 ug/L 

contains arsenic exceeding Appendix I standards. [Footnote 161: Id. At 89.]

- Eastern Kentucky Power Cooperative’s Spurlock Station, Maysville, Kentucky: Groundwater 

has been documented beyond the landfill boundary with arsenic concentrations as high as 160 

ug/L, exceeding Appendix I standards by over 3 times. [Footnote 162: Env. Integrity Project, 

Earthjustice, & Sierra Club, In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers 

Americans and Their Environment 69 (Aug. 26, 2010) (Jeff Stant, ed.) [hereinafter In Harm’s 

Way], available at 

http://www.environmentalintegrity.org/news_reports/documents/INHARMSWAY_FINAL3.pdf.

)]

- First Energy’s Bruce Mansfield Power Plant, Little Blue Run Surface Impoundment, Greene 

Township, Pennsylvania: [Footnote 163: Id. at 161.] Onsite groundwater wells show exceedances 

of Appendix I MCLs for fluoride and lead. [Footnote 164: The Appendix I MCL for fluoride is 4 

mg/L; groundwater concentrations have been as high as 6.4 mg/L. The lead concentrations have 

been as high as 2,700 ug/L, over 50 times higher than the Appendix I MCL of 50 ug/L.] Off-site 

residential wells have exceeded Appendix I MCLs for barium, cadmium, and lead. [Footnote 

165: The Appendix I MCLs for barium, cadmium and lead are 1 mg/L, 0.01 mg/L, and 0.05 

mg/L, respectively. Groundwater concentrations for these three metals have been as high as 6 

mg/L, 0.85 mg/L, and 1.8 mg/L, respectively.] 

- Allegheny Energy’s Hatfield’s Ferry Power Station, Masontown Pennsylvania: [Footnote 166: 

In Harm’s Way, at 174.] Groundwater exceeds Appendix I levels for arsenic, with concentrations 

as high as 3.4 mg/L. Although Pennsylvania has been involved in enforcing surface water laws, 

it has taken no action on the groundwater issue. 

- AES’Cayuga Coal ash Disposal Landfill, Lansing, New York: [Footnote 167: Id. at 112.] 

Groundwater wells have exceeded the Appendix I MCL for selenium. 

This is by no means a complete list.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.
397

Comment Number: EPA-HQ-RCRA-2009-0640-06315-37

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.2.2 7.1.2.5 4.2.4

Comment Excerpt Text:

Table 29 shows the results of damage reports compiled by Environmental Integrity Project, 

Earthjustice, and Sierra Club [Footnote 168: Id. at 174; Out of Control.] Forty sites fit the current 

definition of open dumping—these landfills and impoundments have caused on-site groundwater 

to exceed Appendix I MCLs. Fifty-four sites have caused groundwater to exceed current EPA 

MCLs—these sites would therefore be subject to the remediation requirements of the proposed 

changes to the subtitle D open dumping criteria. It is important to remember that groundwater 

monitoring requirements are often absent or inadequate. This list is limited to those sites for 

which data are available, but we expect that many more sites have been contaminating 

groundwater in violation of the RCRA regulations. Although this list is incomplete, it vividly 

demonstrates that faith in state enforcement of subtitle D regulations is misplaced. The current 

criteria, contrary to their statutory purpose, have failed to ensure that there is “no reasonable 

probability of adverse effects on health or the environment.” [Footnote 169: 42 U.S.C. § 

6944(a).] The proposed changes to the subtitle D criteria will not do anything to improve 

compliance, and if anything will make the situation worse (see Section VI.C infra).

[see original comment for Table 29. On-site groundwater data exceeding Federal Primary 

Maximum Contaminant Levels (MCLs) or RCRA open dumping MCLs. [Footnote 170: 

40.C.F.R.§ 257, Appendix I.] (Table adapted from “In Harm’s Way” and “Out of Control” 

damage reports. [Footnote 171. In Harm's Way, at 124-31; Out of Control, at 19.]) 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 
398

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2009-0640-06315-38

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.2.2 7.1.2.5

Comment Excerpt Text:

b. Open Dump By Violating the Clean Water Act 

A second criterion defines open open dumps as facilities that discharge pollutants “in violation of 

the requirements of the National Pollutant Discharge Elimination System (NPDES) under 

Section 402 of the Clean Water Act.” [Footnote 172: 40 C.F.R. § 257.3-3(a).] Many coal plants 

are in violation of the Clean Water Act, either by discharging without a NPDES permit or by 

discharging in violation of a NPDES permit. These include the following: 

- Duke Energy’s Gibson Generating Station, Princeton, Indiana: Discharges of wastewater with 

selenium concentrations as high as 14 ug/L occur without a permit. [Footnote 173: Out of 

Control, at 19.] 

- Mirant’s Brandywine Coal Ash Landfill, Brandywine, Maryland: A citizen suit alleges that this 

landfill has discharged arsenic, mercury, and other pollutants without a NPDES permit. 

[Footnote 174: Id. at 26.] 

- Reliant Energy’s Seward Generating Station,New Florence, Pennsylvania: For years an ash 

pile outfall has been discharging in violation of NPDES permit limits for iron, aluminum, 

manganese, and pH. [Footnote 175: Id. at 72.] 

- Reliant Energy’s Fern Valley Coal Combustion Waste Landfill, Elrama, Pennsylvania: It 

appears that over 90% of the water discharging from this site does not pass through permitted 

outfalls. The NPDES permit for the controlled outfall through which the small remainder flows 

does not include limits for arsenic, selenium or lead. [Footnote 176: Id. at 78.] 

- Portland Generating Station’s Bangor Quarry Ash Disposal Site, Bangor, Pennsylvania: 

Known discharges of boron, selenium, and cadmium are apparently unauthorized by the site’s 

NPDES permit. [Footnote 177: Id. at 85-86.] 

- American Electric Power’s John Amos Power Plant, Winfield, West Virginia: Discharges 

violate NPDES permit limits for selenium, contributing to selenium concentrations in the 

receiving waters that exceed state standards and concentrations in fish that exceed proposed EPA 

criteria. [Footnote 178: Id. at 105-06.] 

American Electric Power’s James M. Gavin Power Plant,Cheshire, Ohio: Discharges have 

exceeded NPDES permit limits for boron and Allowable Effluent Toxicity on multiple 

occasions. [Footnote 179: In Harm’s Way, at 124–31.] 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 
399

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2009-0640-06315-40

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.2.2 7.1.2.5 4.2.4

Comment Excerpt Text:

In sum, the regulation of coal ash disposal practices under subtitle D is intended to prevent the 

risk of adverse health and environmental impacts. The mechanisms built into the law include 

state-enforced prohibitions of unpermitted surface water discharges and groundwater 

contamination. Yet the risk is not diminished if states consistently fail to enforce the basic 

requirements of Subtitle D. The lists above show that many landfills and surface impoundments 

are discharging selenium and other pollutants in violation of NPDES permits and that seeps from 

surface impoundments and landfills discharge without abatement. Many more sites are leaching 

arsenic, fluoride, lead, and other contaminants into aquifers that are potentially or actively 

supplying drinking water. These prohibited “open dumps” illustrate that states are not enforcing 

current federal guidelines. The present guidelines are few and straightforward. It is unreasonable 

to believe that states will do a much better job with the much more complex guidelines proposed 

under EPA’s subtitle D option. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
400

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2009-0640-06315-63

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 8.6.1 7.1.2.5

Comment Excerpt Text:

5. State Regulatory Responses Have Been Inadequate.

State regulatory agencies have done little to respond to contamination from CCR disposal sites. 

Repeated evidence of contamination at monitoring points rarely results in any action beyond 

assessment monitoring to address the problem. For example, of 35 sites that contaminated 

groundwater in the In Harms Way Report, [Footnote 331 0(renumbered and corrrected per 

#10492, with additions in bold): In Harm’s Way Executive Summary] monitoring data clearly 

indicate the contamination was moving offsite at 29 of the sites. In other words, the farthest 

downgradient well before the property line was found to be contaminated over baseline 

concentrations and relevant standards at these 29 sites. States had required assessment 

monitoring in onsite wells in response to increases in contamination at 18 of the sites. Off-site 

monitoring had only occurred at 8 sites (and this was not required in most of these instances, but 

done voluntarily by the utilities). Efforts to investigate the source or determine the extent of 

contamination have only occurred at four sites. At no site has the contamination been halted or 

remediated.

Even when people are likely to be in harms way, state agencies routinely fail to take action to 

halt or clean up contamination from CCR disposal sites. At 15 of the 35 sites referred to above, 

state and county well records indicate at least five private residential (drinking water) wells are 

within two miles of the site. At 13 of those sites, wells are located in the direction that 

contamination is moving. These include the Joliet #9 site in Illinois, the Cardinal, Gavin, 

Muskingum and Uniontown (a.k.a., Industrial Excess Landfill) (corrected per #10492 

technical corrections, with additions in bold) sites in Ohio, the Northeastern site in Oklahoma, 

the Fayette site in Texas, the Flint Creek site in Arkansas, the Lansing site in Iowa, the Big Stone 

site in South Dakota, the Bruce Mansfield and Hatfield’s Ferry sites in Pennsylvania, and the 

Rodemacher site in Louisiana. All of these sites except for Muskingum and Uniontown
401

(corrected per #10492 technical corrections, with additions in bold) are also within five miles of 

at least one downgradient public water supply well with a much higher pumping capacity. 

Among these cases, state agencies have sampled off-site drinking water wells only at the 

Uniontown and Bruce Mansfield sites. Contamination of numerous wells has been documented 

at both of them.

Even after contamination is found in off-site drinking water wells, the following examples 

illustrate that regulators have taken decades to act and done little to halt the contamination or 

stop further human exposure until itsit is (corrected per #10492 technical corrections, with 

deletions in strikeout and additions in bold) too late:

- At the Industrial Excess Landfill in Uniontown, dozens of residential wells were contaminated 

by the use of at least one million tons of industrial coal ash in a sand and gravel quarry where 

solvents and other industrial wastes were disposed in the 1960s and 70s before the site was 

closed and eventually became a Superfund NPL site in 1986. Court documents establish that coal 

ash was the only metal-laden waste dumped at this site that could be the source of antimony at 52 

times the MCL, beryllium at 30 times the MCL, cadmium at 53 times the MCL, lead at 46 times 

the MCL, chromium at 17 times the MCL, arsenic at 13 times the MCL, thallium at 6.5 times the 

MCL and nickel at 22 times its former MCL in residential wells and monitoring wells. In 1987 

USEPA required 100 homes west of the site to be provided with free public water. Yet despite 

the OH EPA’s assertion that metal concentrations were rising in contaminant plumes from the 

site in the mid 1990s, USEPA determined that this cleanup remedy was complete in 2005 

without remediating contamination flowing from the landfill to the north and south into 

neighborhoods. Wells as much as 1,000 feet offsite to the north have had exceedances of MCLs 

for cadmium, chromium, lead, selenium, and thallium in samples collected from 1997 to 2001. 

Yet 19 monitoring wells were decommissioned in 2004, including 8 where exceedances have 

occurred in residential areas not provided with public water. In fact, analysis for metals was 

stopped at all remaining monitoring wells in 2004. Residents in these areas who cannot afford a 

hook-up fee continue to use private wells and face potentially daily exposure to high levels of 

toxic metals. Since the early 1990s, high cancer incidence has been reported in neighborhoods 

immediately to the southwest, west and northeast of the landfill. [Footnote 332 1(renumbered 

per #10492): In Harm’s Way, at 133–43.]

- At the Bruce Mansfield’s massive unlined Little Blue Surface Impoundment, multiple drinking 

water wells have been contaminated with cadmium up to 170 times the MCL, lead 120 times the 

MCL, barium 3 times the MCL, arsenic up to 2.5 times the MCL, and other constituents such as 

boron, chloride, fluoride, sulfate, manganese, and aluminum exceeding secondary MCLs and 

Health Advisories. Pennsylvania Department of Environmental Protection (PADEP) and First 

Energy entered into a settlement agreement in 1994 to address groundwater contamination. Since 

then, PADEP has issued two Notices of Violations (NOVs) for fugitive dust and required 

resampling of 10 wells with elevated arsenic. In addition, PADEP permitted an increase in the 

height of the dam for the impoundment in 2006 to accommodate more fly ash and scrubber 

sludge from the Bruce Mansfield Plant. The resulting increase in ash water height has increased 

head (downward) pressure, pushing the groundwater contamination farther offsite and resulting 

in levels of arsenic, antimony, hexavalent chromium, lead, boron, cadmium, thallium, selenium, 

and other constituents in off-site springs and seeps in excess of Pennsylvania’s water quality 

standards. At least 22 private wells have now been contaminated above MCLs, SMCLs, and 

health advisories, and many of the affected homes have been purchased by First Energy. To date, 
402

PADEP has not required a remediation plan or assessed penalties. [Footnote 333 2(renumbered 

per #10492): Id. at 161–73.]

- Since 1962, Midwest Generation has dumped bottom ash and boiler slag from its Joliet 9 and 

Joliet 29 Power Plants into an unlined ash landfill in the Lincoln Quarry in Joliet, Illinois. 

Despite the existence of 94 wells within a mile of the Landfill in a setting described by Illinois 

Environmental Protection Agency (IEPA) as “an area with very high geologic vulnerability and a 

high potential for potable well contamination,” in 1996 IEPA exempted the landfill from 

complying with Illinois Class 1 Groundwater Protection Standards as long as it maintained a 

pumping operation to keep groundwater from leaving the landfill. The exemption applied relaxed 

standards for cadmium, boron, selenium, and molybdenum in groundwater onsite that allowed 

cadmium levels up to 52 times the MCL in this groundwater. The landfill failed to maintain the 

inward gradient, however. Contaminated groundwater began flowing north, west and south out 

of the Main Quarry as noted in the summer of 2002 by IEPA staff and admitted by Midwest 

Generation in October of 2005. In April 2006, Midwest Energy sampled wells to the south of the 

landfill for boron only and found them contaminated with boron up to 1.5 mg/L, which is far 

above natural levels but does not exceed the Illinois groundwater standard of 2.0 mg/L. The 

results indicated contamination had spread as much as 1,000 feet to the south of the Landfill and 

led Midwest to buy out or drill deeper wells for 18 residences. Monitoring data had documented 

levels of arsenic up to 10 times the MCL, boron up to five times the state standard and more than 

3 times EPA’s Child Health Advisory, molybdenum up to 70 times the LTHA, and dozens of 

additional exceedances of IL groundwater quality standards (AGQS) for copper, barium, sulfate 

TDS, pH, ammonia, chloride, nitrate, sodium and fluoride in monitoring wells on the perimeter 

of the landfill from 2007 to 2009. IEPA finally prepared a draft NOV in August 2009 for some 

50 of the exceedances of AGQS, but never sent the NOV to Midwest Energy. The state has 

conducted very little, if any, off-site sampling, leaving this task to the discretion of the utility. 

Thus, IEPA has taken no enforcement actions or other significant steps to address the substantive 

contamination that has been flowing offsite in violation of this CCW landfill’s operating permit 

for many years. [Footnote 334 3(renumbered per #10492): Id. at 41–47.]

- Twelve Wells in the hamlet of East Mount Carmel, Indiana that supply drinking water to a bait 

shop, a church and ten trailer homes have been contaminated with boron up to twice the USEPA 

Child HA, manganese 34 times the SMCL and 6 times the LTHA, iron 23 times the SMCL, and 

sulfate and TDS nearly twice their SMCLs. The contamination is from unlined ash ponds 500-

600 feet away on property of Duke Energy’s 3,000 megawatt Gibson Power Plant. Sodium levels 

in the wells have been as high as 347 mg/L in the semipublic well of the church, used by many 

residents. This is 17 times higher than EPA’s health-based Drinking Water Advisory for 

ingestion of sodium by individuals on a salt-restricted diet. Regularly monitored groundwater 

nearer the ponds on the plant property has arsenic levels up to 7 times higher than the MCL and 

selenium levels exceeding the MCL. Discharges from the ash ponds have also contaminated 

Gibson’s 3,400 acre cooling lake with selenium up to 0.013 mg/L, nearly three times the federal 

surface water quality standard or Criterion Continuous Concentration, forcing a ban on fishing in 

this once popular fishing lake. In turn, discharges from the cooling water lake to the Cane Ridge 

Wildlife Area, a unit of the Patoka River National Wildlife Refuge, contaminated the water, soil 

and biota with selenium levels that posed a high hazard to wildlife. This forced the US Fish and 

Wildlife Service to drain and remediate the contamination through discing of a wetland nesting 

area used by the federally endangered Least Tern. Fish whole body selenium levels in the 

wetland were 9-30 ug/g. [Footnote 335 4(renumbered and corrected per #10492, with deletions 
403

in strikeout and additions in bold): USFWS, 2008. Briefing Statement: Duke Energy's Gibson 

Selenium Contamination - Ramifications for Cane Ridge and Interior Least Terns (May 

28, 2008).] The safe dietary level of selenium for wildlife is 3.0 ug/g. [Footnote 336 

5(renumbered and corrected per #10492, with deletions in strikeout and additions in bold): See 

Appendix I. "Lemly, A.D. 1993. Guidelines for Evaluating Selenium Data from Aquatic 

Monitoring and Assessment Studies, Environmental Monitoring and Assessment (28): 83-

100.] Least Tern eggs gathered at the site in 1996 and 2004 contained 3.53-5.48 ug/g of selenium 

with levels rising over time and hatchling mortality was high. [Footnote 337 6(renumbered and 

corrected per #10492, with deletions in strikeout and additions in bold): USFWS, 2008. Briefing 

Statement: Duke Energy's Gibson Lake Selenium Contamination - Ramifications for Cane 

Ridge and Interior Least Terns (May 28, 2008).] In 2010, Duke provided a public water line 

to residents in East Mt. Carmel and assisted the USFWS in restoring the selenium damaged 

wetland in 2008. Yet Duke has refused to provide water to residents who live near East Mt. 

Carmel north of the ponds who are complaining about the taste and smell of their water. The 

Indiana Department of Environmental Management has declined to take any enforcement action, 

conduct any sampling or otherwise require any remedial steps to address the contamination of 

private wells near the site or the selenium contamination in the Cane Ridge Wildlife Area. There 

have been at least two residents with kidney illnesses and complaints of other ailments from 

residents of the ten trailers in East Mt. Carmel who are also blanketed regularly with coal ash 

dust blowing from the near full ash ponds in the summer. [Footnote 338 7(renumbered per 

#10492): Out of Control, at 19–22; and 2010 discussions of EIP staff with East Mt. Carmel 

residents.]

- In Colstrip, Montana, a groundwater contaminant plume from two evaporation ponds (the 

closed Stage I and still active Stage II Ponds) of the Colstrip Power Plant contaminated private 

wells in a subdivision. It also contaminated the well for a local Moose Lodge 1,000 feet away. 

This well had concentrations of boron at 20 mg/L, more than six times the EPA Child HA, 

sulfate at 6,000 mg/L, twelve times the EPA health-based DWA, and TDS at 9,500 mg/L, 

nineteen times the SMCL. Owners of the plant knew that they were contaminating peoples’ wells 

in the 1980s, but did not make this information publicly available until they were forced to 

replace the Moose Lodge Well in 1998. Residents, a number of whom who were made ill from 

drinking water from the Moose Lodge well, filed a lawsuit against the Power Plant in 2003. In 

2008 the owners of the Plant (PPL Montana) settled with 57 Colstrip residents for $25 million in 

damages. Another contaminant plume from the Effluent Holding Pond (EHP) for Plant Units 3 

and 4 has now traveled a mile to the south contaminating private property that has since been 

purchased by PPL Montana and also migrated far to the west. Ranchers who own these lands 

filed a suit in 2007 over the damages from the contamination. In February 2010, 22 years after 

the contamination of drinking water wells by CCW had become had become a demoralizing 

public health issue in Colstrip, the Montana Department of Environmental Quality (MDEQ) 

proposed an Administrative Order on Consent (AOC) with PPL Montana to address the problem. 

The AOC will remediate CCW contamination at the main plant site, the Stage I and II ponds, the 

Units 3 and 4 EHP and any leaks or spills in the attendant pipelines between these units. 

However, with compliance boundaries and timeframes for compliance with remediation 

objectives unclear, citizens fear the AOC could allow Colstrip’s operators to continue to 

discharge from all three sites indefinitely instead of fixing the ponds and complying with the 

“closed loop” permit originally approved for the plant. In the meantime, the Montana Legislature 

enacted a law in 2007/2008 that prevents the MDEQ from enacting any regulations setting 
404

standards for CCW from any new coal plants that might be built in Montana. [Footnote 339 

8(renumbered per #10492): Id. at 31–36.]

Despite the substantial and well-documented offsite damage to communities at these five sites, it 

is notable that not one of them is identified as a proven or potential damage case by EPA. 

[Footnote 340 39(renumbered per #10492): See 75 Fed. Reg. 35,128, 35,234–35,239 (June 21, 

2010).] Based on past experience, state agencies are not able to protect public health and the 

environment with respect to CCR disposal. Strong federal regulations are critical to keep CCR 

out of drinking water and surface waters, and ensure the safe disposal of CCR.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2009-0640-06411-10

Organization1:Alabama Department of Environmental Management (ADEM)

Commenter1: Gerald Hardy

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Another issue related to State program adequacy is in the area of compliance and enforcement. 

Under the Subtitle D proposal, EPA would not have direct enforcement authority over the 

requirements. Rather, like the current Subtitle D programs for municipal solid waste (MSW), 

enforcement under separate State program authority, or under federal RCRA citizen suits would 

be the means of enforcing these requirements. Since 2006, ADEM has issued nearly two dozen 

notices of violation and two administrative Orders with penalties to MSW landfills in Alabama. 

With only just over 30 permitted MSW landfills in Alabama, these actions reflect an 

enforcement program that is sufficient to both penalize facilities in noncompliance and to 

provide a deterrent to future noncompliance. Recent program enhancements such as increased 
405

numbers of inspections and the requirement for certified landfill operators at public disposal 

facilities have also increased the industry's overall compliance rate in Alabama.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2009-0640-06723-14

Organization1:West Virginia Department of Environmental Protection (WVDEP)

Commenter1: Gary Casto on behalf of Randy C. Huffman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.2.5

Comment Excerpt Text:

The regulations also require post closure monitoring and maintenance for a period of up to thirty 

years. CCR regulations are administered by a joint Solid Waste/NPDES permit and solid waste 

facilities are inspected for permit compliance and structural integrity on a routine basis.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06815-10

Organization1:Michigan Department of Natural Resources and Environment (DNRE)

Commenter1: Liane J. Shekter Smith

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.2.5

Comment Excerpt Text:
406

Michigan also requires financial assurance for industrial and low-hazard industrial waste 

landfills and surface impoundments. The amount of financial assurance required is $20,000 per 

acre up to a maximum of $1,000,000 plus an additional amount deposited into a perpetual care 

fund (PCF). A PCF is a trust or escrow account that is funded with deposits based upon the 

quantity disposed. Disbursements from the PCF, other than for administrative fees and specific 

fees designated by the DNRE, are prohibited unless authorized by the DNRE. The PCF must be 

maintained throughout the 30-year post-closure care period. The PCF also has a specified 

maximum, currently $1,878,500 (or $939,250 for certain type III landfills), which is adjusted 

annually for inflation. 

Response: The Agency appreciates and acknowledges this comment. In the proposal, the 

Agency stated that the RCRA subtitle D alternative did not include proposed financial 

responsibility requirements and that any such requirements would be proposed separately. The 

Agency solicited comment on whether financial responsibility requirements under CERCLA 

section 108(b) should be a key Agency focus under a RCRA subtitle D approach. While the 

Agency received numerous comments urging the Agency to establish financial responsibility as 

part of the subtitle D option, the CERCLA 108(b) option did not receive significant support. As 

discussed in the proposal and reiterated here, EPA will not be requiring financial assurance 

requirements as part of this rule. The Agency however will continue to investigate the use of 

other statutory authorities (e.g., CERCLA) to establish financial responsibility requirements for 

owners or operators of CCR landfills, CCR surface impoundments and any lateral expansion.

Comment Number: EPA-HQ-RCRA-2009-0640-06819-6

Organization1:Missouri Department of Natural Resources

Commenter1: Robert Stout on behalf of Dru Buntin

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In addition to these requirements, the department inspects all permitted solid waste disposal 

areas, including UWLFs, at least once per year to ensure compliance with applicable regulations. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Unit VI of the preamble for a presentation and discussion of the technical standards, 

including inspections, the Agency is promulgating in this rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06831-1

Organization1:MACTEC Engineering and Consulting, Inc.

Commenter1: Guy Winebrenner

Commenter Type: Other Company

Classification: Substantive
407

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2 4.1.1 11.2.5 7.1.2.5

Comment Excerpt Text:

Based upon our experience in seven states where coal is used to fuel a significant portion of the 

electric generation output, it is our experience that the state regulatory programs controlling dam 

safety, landfill design, groundwater protection and both point and non---point discharge provide 

an adequate framework to provide for public safety, property protection and environmental 

preservation. Moreover, the state regulatory programs are designed to take into consideration the 

specific geographic, geologic and water resources features that can affect the proper operation of 

CCR storage facilities. Where these existing safety and environmental protection regulations 

have been effectively utilized and properly enforced, facilities have been operated without public 

harm or environmental impairment. Moreover, laboratory and field testing of properly designed 

CCR storage facilities has demonstrated that the residual material does not present a threat to 

either surface or groundwater. The issue, therefore, is not federal versus state regulation, but the 

uniform and consistent application and enforcement of existing regulations. Consequently, we 

see no compelling reason to move the regulation of CCR storage installations from state control 

under current standards to federal control under the Hazardous Waste Management requirements 

of Subtitle C. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06864-1

Organization1:Hull & Associates, Inc.

Commenter1: William G. Petruzzi

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.2 3.1.2 11.2.5 7.1.2.5

Comment Excerpt Text:

Based on our years experience assisting our clients with the management of solid waste and coproducts (including CCR), we believe that existing State regulations have worked sufficiently to 

protect human health, safety and the environment. We agree that regulations do need to be 

periodically upgraded or revised to reflect changes in technology, advances in scientific 

understanding and the general desire of the community. However, we believe that the US EPA’s 

proposed regulations are being developed without an appreciation for the continued success of 

CCR containment systems in many of the States’ current programs to regulate and manage CCR. 
408

We are aware of the rare instances where CCR containment systems have failed, or have not 

been operated properly, and believe that any impacts or potential threats that have resulted were 

caused by geotechnical failures or lack of proper operation and maintenance – neither of which 

would require new Federal rules to address. We believe that the US EPA and industry have 

worked well together to inspect facilities and to make any necessary improvements to existing 

systems that did not meet design or performance standards, and that building upon this approach 

may serve as a basis for working together as the evaluation of alternative approaches for 

management of CCR continues. We do feel that continuing with the application of the existing 

programs, following through on implementing improvements to systems identified during earlier 

inspections, and industry continuing to manage and self-inspect their systems to assure 

compliance will allow for an extension on the proposed implementation timeline for any new 

rules and also allow for the vetting of alternative approaches. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2009-0640-06872-19

Organization1:State of Pennsylvania Department of Environmental Protection

Commenter1: Todd M. Wallace

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.2.5

Comment Excerpt Text:

All CCR landfills and surface impoundments are inspected on a regular basis by all PA DEP 

programs that are involved in the permitting and inspection process.

Response: The Agency acknowledges and appreciates the comment. 
409

Comment Number: EPA-HQ-RCRA-2009-0640-06880-4

Organization1:Eastman Chemical Company (Eastman)

Commenter1: Keith Harris

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1.1 7.1.1.2

Comment Excerpt Text:

The State of Tennessee has, since the early 1980s, had in place regulation of industrial landfills 

that manage CCR in addition to other industrial wastes. Those regulations were substantially

revised in 1990 and again in 1993. Tennessee Rule Chapter 1200-1-7, Tennessee Rules for Solid 

Waste Processing and Disposal, applies the Federal Criteria for Municipal Solid Waste Landfills 

(40 CFR Part 258) to MSW landfills, but also apply those standards to industrial landfills, 

including those that manage CCR. As a result, CCR landfills in Tennessee are subject to 

standards that require site characterization including assessment of areas of concern, buffer 

zones, composite liners, leachate collection systems, final cover systems, run-on and run-off 

control, storm water management, fugitive dust controls, groundwater monitoring, gas 

monitoring, closure and post-closure care, and financial assurance. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2009-0640-06880-5

Organization1:Eastman Chemical Company (Eastman)

Commenter1: Keith Harris

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1.2
410

Comment Excerpt Text:

Eastman has operated an on-site industrial waste landfill managing CCR and other wastes under 

a permit issued in 1984 by the Tennessee Department of Health and Environment (the 

predecessor of the current Tennessee Department of Environment and Conservation (TDEC)). 

This permit has been and is periodically modified by Eastman and TDEC as necessary to assure 

compliance with the regulations and their revisions. Groundwater monitoring has been conducted 

continuously since 1984, at least semi-annually and for a period, quarterly. TDEC's staff in the 

Division of Solid Waste Management conducts inspections of the facility at least quarterly to 

assure the facility complies with these standards. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07533-20

Organization1:Nebraska Department of Environmental Quality (NDEQ)

Commenter1: David B. Haldeman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.2.5

Comment Excerpt Text:

Inspection and Compliance

Compliance oversight is conducted by unannounced annual inspections, comprehensive 

inspections at the time of permit renewal, and inspections initiated through citizen complaints. 

Unannounced facility inspections are conducted at least once per year to evaluate the operation 

and management of the disposal facility. Inspection checklists are used to record satisfactory or 

unsatisfactory conditions at the site, see Attachment B. If the facility is out of compliance with 

the approved permit application, the NDEQ will initiate procedures for the facility to come back 

into compliance.

The findings of the annual inspections are documented and a report is prepared and sent to the 

facility. If a violation is found a Letter of Warning (LOW) or Notice of Violation (NOV) is also 

sent to the facility; including a time period by which the facility must respond with the corrective 

action to be taken.

Individuals may file a complaint if there is a concern about how a CCR landfill is constructed or 

operated. Typically a complainant calls the NDEQ to state their concerns. A complainant can 

also file a complaint on the NDEQ website.

High priority violations can be forwarded to the NDEQ Legal Services Division for appropriate 

action. Such action may include civil penalties of up to $10,000 per violation per day. The 

NDEQ also has the ability to revoke permits and deny the renewal of permits.

When a facility is applying to renew their operating permit a comprehensive inspection is 

completed by the permit and compliance unit staff, including a geologist and financial assurance 
411

coordinator. Permits cannot be renewed unless the permittee is found to be in compliance with 

the expiring permit.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07533-22

Organization1:Nebraska Department of Environmental Quality (NDEQ)

Commenter1: David B. Haldeman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.2.5

Comment Excerpt Text:

Three of the existing CCR landfills have had compliance issues noted from past inspections and 

have received letters of warning from the NDEQ to address the compliance issues. The 

compliance issues consisted of allowing part of a liner to be exposed, timely placement of final 

cover, removal of trees and brush from a drainage area and removal of a small amount of waste 

not considered to be CCR waste. All compliance issues were addressed by the facilities and no 

enforcement beyond the letter of warning was initiated or warranted.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07533-46

Organization1:Nebraska Department of Environmental Quality (NDEQ)

Commenter1: David B. Haldeman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.2.5

Comment Excerpt Text:

[See original comment for Attachment B -- Inspection Checklist; Nebraska Department of 

Environmental Quality Routine Checklist for Fossil Fuel Waste Disposal Areas]

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08247-3

Organization1:Tucson Electric Power Company

Commenter1: Erik Bakken

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.2.5
412

Comment Excerpt Text:

A QUALIFIED STATE REGULATORY BODY SHOULD BE RESPONSIBILITY FOR 

ENSURING COMPLIANCE WITH THE APPLICABLE REQUIREMENTS OF A 

SUBTITLE D PROGRAM

In those states such as Arizona that have qualifying controls for CCRs, EPA needs to allow the 

states to administer the controls to avoid duplication of regulatory programs, with appropriate 

EPA oversight. This approach would allow for the requisite degree of state involvement in 

administration of the CCRs rules that EPA concluded was appropriate in its 2000 final 

Regulatory Determination. 

TEP has confidence that the current APP is sufficient to protect human health and the 

environment. Any additional Federal program would likely result in duplicative regulation which 

TEP does not support. A federal program in addition to the APP program would offer no 

additional protection to human health and the environment. We strongly encourage EPA to 

examine ADEQ?s APP program.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09337-31

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.2.5

Comment Excerpt Text:

Pg. 35195. Arizona’s Aquifer Protection Permit Program has administrative order (A.R.S. § 49-

261) and administrative order violation penalty authorities [A.R.S. § 49-262(C)]; civil injunction 

[A.R.S. §§ 49-261, 49-262(A) and 49-262 (B)] and civil penalty authorities [A.R.S. § 49-

262(C)]; criminal sanctions authority (A.R.S. § 49- 263); and suspension or revocation authority 

[A.R.S. § 49-245(B)].

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09337-39

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.4.1 4.4.7.1 7.1.2.5

Comment Excerpt Text:

Pg. 35251, Section 257.98: The proposed rule will impose corrective action requirements that 
413

may not be compatible with elements of Arizona’s corrective action requirements. A.A.C. R18-

9-A204 requires that all individual Aquifer Protection Permits have a contingency plan for 

corrective action. A.A.C. R18-9-A204(B)(8) describes potential corrective actions that may be 

required by the ADEQ Director on a facility-specific basis. At the discretion of the ADEQ 

Director, these corrective actions could include source control and soil, surface water, and 

groundwater cleanup. Because current state statute and rule have flexible and facility-specific 

cleanup provisions rather than prescriptive cleanups, potential cleanup issues are already 

addressed by state law. ADEQ also has authority under A.R.S. § 49-287(E)(3) to compel 

corrective actions under Arizona’s State Superfund (WQARF) in circumstances requiring 

significant and extensive cleanups resulting from the release of hazardous substances. The 

WQARF statutes have a very different liability scheme and a different approach to remedy 

selection than either RCRA or CERCLA corrective action requirements. Thus the requirement 

under 257.98 (d)(2) indicating that all remedies must comply with (all) applicable RCRA 

requirement may create conflicts for the state. In practice, the Aquifer Protection Permit program 

has permitted these kinds of facilities since 1986. Because extensive groundwater and 

operational monitoring permit requirements have been effective, no significant releases requiring 

WQARF-ordered cleanups have occurred.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09427-1

Organization1:San Miguel Electric Cooperative, Inc. (San Miguel)

Commenter1: Joseph G. Eutizi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 12.1.1.7 7.1.1.1 7.1.1.2 7.1.1.4

Comment Excerpt Text:

Since the early 1980’s, San Miguel has actively sought off-site markets for the CCRs generated 

by the plant, however most of the CCR is ultimately returned to the adjacent mine for placement. 

Those placement activities are registered with the Texas Commission on Environmental Quality 

(TCEQ) and permitted with the Railroad Commission of Texas (RCT) – the state surface mining 

regulatory authority. As part of the TCEQ registration process, San Miguel was required to 

demonstrate that the native soil met, at a minimum, the standards for a compacted clay liner and 

to install groundwater monitoring wells. The areas that receive CCR are deed recorded in the 

appropriate counties and affected landowners were notified in advance of placement. The 

placement activities are spelled out in detail in San Miguel’s RCT permit, and affected 

landowners are given an opportunity to participate in the RCT permitting process. Finally, the 

placement activities and areas are inspected by the RCT at least monthly.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09431-12

Organization1:Otter Tail Power Company

Commenter1: Farren Richard
414

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1.2

Comment Excerpt Text:

A permit engineer within the department oversees the design, construction, operation, and 

closure of landfill.

A compliance officer is responsible for conducting periodic inspections of the operations at the 

site. A hydrologist reviews groundwater monitoring data and issues monitoring well 

requirements. A financial assurance officer oversees our annual financial assurance guarantees. 

A separate engineer oversees beneficial use of CCRs within the state State requirements include: 

receiving a permit for the landfill site, adhering to liner construction requirements (including a 

synthetic liner element, leachate collection and pumping system, and liner leak detection 

system), gaining approval for specific wastes that are deposited in the landfill, implementing 

storm water run-off and run-on controls, installation and sampling of a groundwater monitoring 

network around the landfill site, submitting groundwater sampling data, pumping and disposal of 

leachate generated on-site, submitting annual reports including data analysis of groundwater 

monitoring and financial assurance reports, and following specific closure requirements. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-10019-4

Organization1:Spalding & Hilmes, PC

Commenter1: 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:

1. Indiana's Solid Waste Program 

Indiana has a permitting program applicable to CCR landfills, 328 Indiana Administrative Code 

10-1-1 et seq. Merom has a landfill permit, FP 77-03, under that regulatory scheme. It has 

applied for a permit for a new landfill, FP 77-04. That permit application is pending before 

IDEM. 

The FP 77-03 permit contains a variance from the daily cover requirement in the Indiana rules. 

The FP 77-04 requests the same variance for the new landfill. The variance is revocable by 

IDEM ifthe facility is found to be in violation of fugitive dust regulations or if visible waste 

deposits carried by wind or surface water beyond the site property boundary are documented. We 

submitted a letter on behalf of our clients to IDEM on July 6, 20 10 documenting fugitive dust 

blowing off the Merom facility onto their properties and requesting revocation of the variance. 

To date, we have received no response from IDEM. We commented extensively on the permit 
415

application, FP 77-04, opposing Merom's request for a daily cover variance. Merom has so far 

failed to demonstrate the "undue hardship" standard required for a variance by Indiana Code 

§13-14-8, and IDEM has failed to request Merom make such a demonstration. 

In addition, our clients have made multiple complaints to IDEM concerning the fugitive dust, 

and so far IDEM has failed to take any enforcement action. 

2. IDEM's NPDES Permitting Program 

As discussed above, Merom currently has a NPDES renewal permit pending at IDEM as well. 

IDEM's Draft NPDES permit includes for the first time for only some of the outfalls monitoring 

and reporting requirements for some of the parameters associated with CCR. Nor does the Draft 

Permit have effluent limits or treatment requirements for the pollutants that discharge from the 

storm water outfalls that include runoff from the CCR landfill and CCR handling facilities. 

Turtle Creek Reservoir is a "water ofthe state," and the fact that it has been discharging without 

ever have determined whether there was a reasonable potential to exceed water quality standards 

for the constituents of concerns associated with CCR is contrary to both federal and Indiana law. 

For example, pursuant to Indiana's regulations: 

The goal ofthe state is to restore and maintain the chemical, physical, and biological integrity 

ofthe waters ofthe state. In furtherance of this primary goal: 

(1) it is the public policy of the state that the discharge of toxic substances in toxic amounts be 

prohibited; and 

(2) it is the public policy ofthe state that the discharge ofpersistent and bioconcentrating toxic 

substances be reduced or eliminated. 

327 lAC 2-1-1.5 (Water quality goals). In addition, for all waters of the state, "existing beneficial 

uses shall be maintained and protected. No degradation ofwater quality shall be permitted which 

would interfere with or become injurious to existing and potential uses." 327 lAC 2-1-2 

(Maintenance of surface water quality standards). With respect to designated uses, Indiana 

regulations provide that, except for limited exceptions that do not apply to Turtle Creek 

Reservoir, "surface waters ofthe state are designated for full body contact recreation," and all 

waters will be capable of supporting "a well-balanced, warm water aquatic community." See 327 

lAC 2-1-3 (Surface water use designations; multiple uses). Finally, Indiana regulations provide 

that "Where multiple uses have been designated for a body of water, the most protective of all 

simultaneously applicable standards will apply." Id 

Clearly, neither the original NPDES permit nor subsequent renewals are consistent with Indiana's 

articulated policies and goals or compliant with Indiana law and regulations. Although the 

proposed EPA rule will not specifically apply to Indiana's NPDES program, this is an example 

ofthe state's failure to adequately regulate management ofCCR nonetheless. 
416

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2009-0640-10697_DEN-007-10

Organization1:Wyoming Department of Environmental Quality

Commenter1:John Corra

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.2.5

Comment Excerpt Text:

EPA Issue: (9) Requirements for Corrective action, post-closure monitoring and maintenance

WDEQ SHWD Response: Corrective action and post-closure standards are generally equivalent 

to Subtitle D requirements.

WDEQ WQD Response: Under the rules that require a permit to construct, the modification of 

the facility to close requires a permit. The permits to close include post closure monitoring and 

maintenance as deemed necessary by WQD.

EPA Issue: (10) Active enforcement and public involvement

WDEQ SHWD Response: CCR landfills are routinely inspected to assess compliance and 

facilities are subject to enforcement actions for non-compliance. Public notice and participation 

are required before permits are issued, when major changes are proposed and prior to selection of 

a remedy for corrective action.

WDEQ WQD Response: W.S. § 35-11-101 to 115 and DEQ rules of practice and procedure 

provide for public participation and objection to the permitting process. Permitting decisions of 

the WQD can be appealed to the Environmental Quality Council.

EPA Issue: (11) Insurance against catastrophic failures

WDEQ SHWD Response: Like other landfills permitted under Subtitle D, insurance is not 
417

required against catastrophic failures.

WDEQ WQD Response: Insurance against catastrophic failure is not required.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-10697_DEN-007-5

Organization1:Wyoming Department of Environmental Quality

Commenter1:John Corra

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1 7.1.2 7.1.2.5

Comment Excerpt Text:

EPA Issue: (4) The effectiveness of existing management units as opposed to new management 

units

WDEQ SHWD Response: Wyoming implemented Subtitle D regulations for CCR landfills that 

received waste after November 28, 1990. Standards for these “new” units are more stringent than 

prior regulations. New units may not be constructed where the administrator finds they will have 

a detrimental effect on surface or groundwater. Liners are required if the administrator 

determines that conditions cannot be met to prevent potential contamination of groundwater. 

Existing and new units must be monitored and an assessment of corrective measures must be 

conducted if groundwater protection standards are exceeded.

WDEQ WQD Response: Some existing management units have impacted groundwater very 

locally, but no wells, other than monitoring wells have been impacted. Most new management 

units are being constructed with at least 60 mil thick HDPE membrane liners, which exceed 

minimum design standards.

EPA Issue: (5) Requirements for routine analysis of CCRs.

WDEQ SHWD Response: CCR analysis may be required by the administrator, especially if there 

is a change at the facility that could alter CCR characteristics. Analysis is routinely required for 

beneficial use applications.

WDEQ WQD Response: Initial analysis of CCRs is required for design of waste treatment 

ponds.

EPA Issue: (6) Financial responsibility requirements for the management of CCRs

WDEQ SHWD Response: Under an exemption provided by the solid waste regulations, 

permitted electric utilities are not required to have financial assurance for facility closure or postclosure care, but financial assurance may be required in the event of any discharge of pollution to 

the air, land or waters of the state.

WDEQ WQD Response: W.S. § 35-11-301 prohibits pollution of the waters of the state unless 

allowed by permit and W.S. § 35-11-901 allows penalties of $10,000 a day for each day a 

violation continues.

Response: The Agency acknowledges and appreciates the comment. 
418

Comment Number: EPA-HQ-RCRA-2009-0640-10697_DEN-007-8

Organization1:Wyoming Department of Environmental Quality

Commenter1:John Corra

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1 7.1.2

Comment Excerpt Text:

EPA Issue: (7) The extent of permit requirements, including under what authorities these 

disposal units are permitted, the types of controls that are included in permits, and the extent of 

oversight provided by the states.

WDEQ SHWD Response: Regulatory requirements for CCR landfills are contained in the 

Wyoming statues and rules described above. Permits are required for all CCR disposal facilities. 

Permits must be renewed every 8 years. Standards for CCR landfills are generally equivalent to 

Wyoming’s approved Subtitle D requirements for municipal solid waste landfills in regards to 

facility location, design, construction, operation, monitoring, reporting, corrective action and 

post-closure care.

WDEQ WQD Response: A permit to construct is required for non-biological treatment ponds. 

These permits include approval of a professionally engineered and certified design and a 

certificate of completion that the facility was built as designed or with modifications approved by 

WQD.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2011-0392-0191-3

Organization1:Michigan Department of Environmental Quality (MDEQ)

Commenter1:Liane Shekter Smith

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1 7.1.2.5

Comment Excerpt Text:

U.S. EPA is noticing the comments on the 2010 proposed rule, submitted by Earthjustice, 

Environmental Integrity project, Sierra Club, Natural Resources Defense Council, Southern 

Alliance for Clean Energy, Southern Environmental Law Center, and Physicians for Social 

Responsibility, addressing gaps in state government regulatory programs applicable to the 

management of CCRs. 

The MDEQ disagrees with the report's assessment of Michigan's regulatory program as it applies 

to the management of CCRs. The MDEQ takes issue with the contention in the report that 

individual states take no action with regard to CCR disposal sites, when, in fact, the State of 

Michigan has required the closure of numerous unlined CCR disposal sites, and has required 

corrective action to address groundwater and/or surface water impacts. Michigan identified eight 
419

proven damage cases in the comments submitted to the docket on November 20, 2010. Michigan 

also objects to the characterization of the regulatory program in the State, as described in the 

above referenced document.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0228-11

Organization1:Virginia Department of Environmental Quality (DEQ)

Commenter1:Jeffery Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1.1

Comment Excerpt Text:

o Liner System. Virginia’s industrial landfills are built with a bottom liner meeting the 

provisions of the SWMR. A liner has been required at these landfills since 1988 and any 

suggestion otherwise is incorrect. The liner provisions are provided in 9VAC20-81- 130.J.2. A 

single liner is the requirement; however, groundwater monitoring is also required to insure the 

liner’s performance. If groundwater monitoring impacts above the protection standards are 

determined to have occurred, then the corrective action program under 9VAC20-81-260 is 

implemented.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2011-0392-0228-13

Organization1:Virginia Department of Environmental Quality (DEQ)

Commenter1:Jeffery Steers

Commenter Type: State Government

Classification: Substantive
420

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1.2

Comment Excerpt Text:

o Post-Closure Monitoring. Virginia requires ten years of post-closure monitoring for industrial 

landfills; however, if post-closure monitoring is not terminated after ten years if on-going issues, 

such as groundwater corrective action, have not been resolved.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2011-0392-0236-13

Organization1:Iowa Department of Natural Resources (IDNR)

Commenter1:Brian Tormey

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.5.4

Comment Excerpt Text:

· Table 29 (page 55) [from Document No. EPA-HQ-RCRA-2009-0640-6315] – This Table 

identifies those sites that exceeded “open dumping” criteria in 40 CFR 257, of which three Iowa 

sites have been indicated (George Neal Station North Landfill, George Neal Station South 

Landfill, and Lansing Station Landfill). However, this Table also indicates a fourth Iowa facility 

titled, “Marion Plant” located in Williamson County. It should be noted that there is no 

Williamson County in Iowa nor a facility referred to as the “Marion Plant.”

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2011-0392-0249-5

Organization1:Arkansas Department of Environmental Quality (ADEQ)

Commenter1:Teresa Marks

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As a requirement of state statute, ADEQ staff perform on-site inspections of all landfills at least 

quarterly. The inspections are conducted to determine a permitted facility's compliance with 

applicable laws, regulations, and permits. Additional inspections are also performed should a 

complaint be filed on a facility. Additionally, as a requirement of Regulation 22, a professional 

engineer, currently registered in Arkansas, is required to perform an annual engineering 

inspection for operational compliance and to submit a report (AEIR) by June 30 of each year to 

ADEQ, which includes among other things site surveys, site capacity and site-life analysis, 
421

updated calculations for closure and post closure care cost estimates, and updated financial 

assurance documentation. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2011-0392-0249-9

Organization1:Arkansas Department of Environmental Quality (ADEQ)

Commenter1:Teresa Marks

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1

Comment Excerpt Text:

ADEQ Solid Waste Management Division permitting staff include four engineers, an engineer 

supervisor which is required to maintain Professional Engineer (P.E) registration, two geologists, 

a geology supervisor, and an assistant to the group. The permitting section is currently fully 

staffed. The Solid Waste Management Division also employs eight (8) field inspectors, an 

inspector supervisor, as well as enforcement and support staff. ADEQ budget is currently 

adequate to maintain this staff and there are no known changes which will affect staffing. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2011-0392-0263-5

Organization1:South Carolina Department of Health and Environmental Control

Commenter1:Daphne Neel

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Table 34 of the [EJ] Comments lists the SCE&G Urquhart Station for exceedance of the Arsenic 

standard. For clarification, one monitoring well detected Arsenic in the groundwater above the 

MCL, however, the results have fluctuated and Arsenic has exceeded the MCL in one sampling 

event since 2008. The Department entered into a Consent Agreement with SCE&G for the 

closure of this landfill and in June 2011 the Department reviewed and approved the closure plan.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Unit VI of the preamble for a presentation and discussion of the technical standards 

the Agency is promulgating in this rule. 

Comment Number: EPA-HQ-RCRA-2011-0392-0265-16

Organization1:Department of Environmental Quality, State of Wyoming
422

Commenter1:John Corra

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 8.9

Comment Excerpt Text:

Damage cases in Wyoming 

Wyoming is not listed as a state with a CCR facility where on-site groundwater data exceed 

maximum contaminant levels (MCLs) in Earthjustice's November 19, 2010, comments to EPA. 

Earthjustice cites EPA's July 9, 2007, report titled Coal Combustion Waste Damage Case 

Assessments which listed the Dave Johnson Power Plant in Wyoming as a potential damage 

case. The disposal units at this facility are permitted by the Wyoming Department of 

Environmental Quality and groundwater monitoring is required. We are actively investigating 

evidence of potential groundwater contamination at this facility, but our investigation to date is 

incomplete and inconclusive. Should contamination be confirmed, appropriate corrective action 

will be required. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2011-0392-0271-6

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Ed Thamke

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1 7.1.1.1 7.1.1.2 7.1.2.1 7.1.2.2 7.1.2.4 7.1.2.5

Comment Excerpt Text:

ASTSWMO Survey Revisited 

Earthjustice cites select data from a survey that ASTSWMO performed and submitted to EPA 

prior to the June 21, 2010 proposal. Although it is in the Docket for the proposed rule, the survey 

data was not intended to be taken as official comments to the proposal. As Earthjustice notes, “it 

is not clear from the ASTSWMO survey how many states responded, so these percentages may” 

[Footnote 35: Earthjustice Comments, page 19] provide an accurate picture of State regulatory 

requirements. 

ASTSWMO has since reexamined the data and the results are presented below. It should be 

noted that ASTSWMO and the States do not limit data presentation to those aspects of the 

programs that “look good.” While State programs are far better than portrayed in the Earthjustice 

Comments, most States would agree that improvements can be made. 

Based on information ASTSWMO received in response to a survey of States, following are 
423

answers to questions relevant to the adequacy of State programs: 

How many States currently generate coal combustion residuals? 

Forty-five States generate coal combustion residuals (CCR). Not all States in which CCR is 

generated have disposal of CCR. CCR is disposed in only 42 of those States. 

ASTSWMO does not have the information for 3 of the 42 States in which CCR is disposed. 

Additionally, ASTSWMO may not have complete information for all 39 of the remaining States. 

For each question presented, the number of States that ASTSWMO has information for is 

provided with the information that is available for those States. 

How many States require permits for disposal? 

Thirty-six out of 42 States require permits for disposal of CCR in landfills. Twenty-nine out of 

32 States require permits for the management of CCR in surface impoundments. In some States, 

the permits may not be specifically for disposal of CCR in surface impoundments. In those cases, 

the permit may be for effluent discharge. 

In the States that require permits for disposal of coal combustion residuals, what are the liner 

requirements? 

ASTSWMO has information about landfill liner requirements for 38 States. In 27 of the 38 

States, a bottom liner is required for landfills. Eleven of the 38 States do not require a bottom 

liner. Seven of those 11 States make a determination about requiring a bottom liner on a case-bycase basis. Liner requirements in 32 States are as follows: dual/multiple liner in 9 States; 

composite liner in 14 States; clay liner in 7; and 2 States require another type of liner. Variances 

are allowed in 23 States and exemptions in 7 States. Liner requirements apply to both existing 

and new lateral expansions of landfills in 13 States and only new expansions in 23 States. 

ASTSWMO has information about surface impoundment liner requirements for 26 States. In 17 

of the 26 States, a bottom liner is required for surface impoundments. Eleven of the 26 States do 

not require a bottom liner. Five of those States make a determination about requiring a bottom 

liner on a case-by-case basis. Liner requirements in 19 States are as follows: dual/multiple liner 

in 9 States; composite liner in 5 States; clay liner in 5 States. Variances are allowed in 7 States 

and exemptions in 3 States. Liner requirements apply to both existing and new lateral expansions 

of surface impoundments in 12 States and only new expansions in 9 States. 

In each of the States that require permits for disposal of coal combustion residuals, what are the 

groundwater monitoring requirements? 

ASTSWMO has information about landfill groundwater monitoring requirements for 39 States. 

In 34 of the 39 States, groundwater monitoring is required for landfills. Five of the 39 States do 

not require groundwater monitoring. Groundwater monitoring requirements apply to both 

existing and new lateral expansions of landfills in 32 States and only new expansions in 4 States. 
424

ASTSWMO has information about surface impoundment groundwater monitoring requirements 

for 27 States. In 18 of the 27 States, groundwater monitoring is required for surface 

impoundments. Nine of the 27 States do not require groundwater monitoring. Six of those 9 

States make a determination about requiring groundwater monitoring on a case-by-case basis. 

Groundwater monitoring requirements apply to both existing and new lateral expansions of 

surface impoundments in 20 States and only new expansions in 3 States. 

In each of the States that require permits for disposal of coal combustion residuals, what are the 

requirements or regulations regarding structural stability? 

ASTSWMO has information about landfill structural stability monitoring requirements for 36 

States. In 30 of the 36 States, structural stability monitoring is required for landfills. Six of the 36 

States do not require structural stability monitoring. Structural stability monitoring requirements 

apply to both existing and new lateral expansions of landfills in 26 States and only new 

expansions in 7 States. 

ASTSWMO has information about surface impoundment structural stability monitoring 

requirements for 25 States. In 16 of the 25 States, structural stability monitoring is required for 

surface impoundments. Seven of the 25 States do not require structural stability monitoring. Two 

of the 7 States make a determination about requiring structural stability monitoring on a case-bycase basis. Structural stability monitoring requirements apply to both existing and new lateral 

expansions of surface impoundments in 13 States and only new expansions in 3 States. 

How is CCR disposal regulated in the States? 

In many States, the authority to regulate surface impoundments is vested in other State agencies 

pursuant to statutes other than solid waste statutes. While it may be other State agencies that 

have enforcement authority for surface impoundments, 43 out of 44 States indicated that they 

coordinate with the enforcing entities to require that steps are taken to protect human health and 

the environment. 

Despite the concerns expressed in the proposed rule, the State enforcing entities in 42 out of 42 

States have the authority to require remediation. The majority of State agencies noted State 

authority for surface impoundments include repair and maintenance during operation (43 out of 

44 States) and closure (41 out of 43 States), as well as: 

- impoundment design and engineering 

-leachate collection 

- gas collection 

- groundwater and leachate monitoring 

- financial assurance 

- post-closure care and maintenance 

- removal 

- replacement of water supply 
425

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0273-1

Organization1:Department of Natural Resources, State of Missouri

Commenter1:Alan Reinkemeyer

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1 7.1.1.1 7.1.1.2

Comment Excerpt Text:

Missouri has comprehensive regulations in place for the design and permitting of utility waste 

landfills (UWLFs) used to manage CCRs as a solid waste. Missouri promulgated regulations in 

1997 specifically for UWLFs. Utility waste landfills permitted pursuant to these regulations are 

subject to numerous requirements designed to protect public health and the environment, 

including: 1) a geologic and hydrologic evaluation to determine if the site is suitable for 

construction of a landfill; 2) a liner with quality assurance/quality control procedures to ensure 

proper construction; and 3) a leachate collection system and a groundwater monitoring system. 

The Missouri Department of Natural Resources inspects all permitted solid waste disposal areas, 

including UWLFs, at least one time per year to ensure compliance with applicable regulations.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
426

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

CommentWorks® Issue Report

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Number of Issues: 1

Section 7.3.3 - Other

Total Number of Submissions: 8

Total Number of Comments: 8

Comment Number: EPA-HQ-RCRA-2009-0640-06400-4

Organization1:Waste Management (WM)

Commenter1: Susan Briggum

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
427

Other Sections: 2.1.1 2.1.2 2.1.6 7.4.2

Comment Excerpt Text:

Long-term implications of EPA’s interpretation of its 4010 authority: Most of EPA’s rationale 

for considering RCRA Subtitle C regulation of CCRs derives wholly from its self-imposed 

limitation on RCRA to provide EPA regulatory authority only for hazardous wastes and 

municipal solid waste (“MSW”) [Footnote 2: As EPA acknowledges, “the 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 the 

states have afforded communities under RCRA authority. Our experience under the RCRA 

Subtitle C and D programs has been comparable; under both programs, we see state regulators 

bringing expertise and rigor to the task of permitting and overseeing hazardous waste and MSW 

landfills, assuring the facilities achieve RCRA’s goal of protecting human health and the 

environment [Footnote 4: For a recent assessment of the effectiveness of EPA’s regulatory 

program for MSW landfills, see http://www.wm.com/sustainability/pdfs/Geosyntec_report_-

_Environmental_Protection_at_the_Managed_Solid_Waste_Landfill_06201.pdf.]. When EPA 

has provided the kinds of clear and detailed guidelines evident in the RCRA Subtitle C 

regulations and Subtitle D criteria for MSW landfills, state regulatory authorities responded with 

programs implementing the 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 to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06723-3

Organization1:West Virginia Department of Environmental Protection (WVDEP)

Commenter1: Gary Casto on behalf of Randy C. Huffman

Commenter Type: State Government

Classification: Substantive

Comment Category:
428

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The inclusion of coal ash as a Subtitle C waste would also act as "defacto" elimination of 

beneficial alkaline amendment use of certain coal ashes in mining. This would noticeably inhibit 

the restoration of several acidic streams in northern West Virginia.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06808-12

Organization1:New Mexico Environment Department (NMED) and Energy, Minerals and 

Natural Resources Department (EMNRD)

Commenter1: Bill Brancard

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.7.6

Comment Excerpt Text:

Regulation under RCRA Subtitle C is more desirable because it gives New Mexico a stronger 

role and more authority to assure that CCRs are properly managed and that any existing 

contamination is cleaned up. NMED has demonstrated that it has a strong 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 completing their regulatory requirements. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
429

Comment Number: EPA-HQ-RCRA-2009-0640-07533-26

Organization1:Nebraska Department of Environmental Quality (NDEQ)

Commenter1: David B. Haldeman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.4.2

Comment Excerpt Text:

It would be helpful if EPA would clarify in its final rule how state voluntary cleanup programs 

might be used to address corrective action found necessary at CCR landfills under either a 

Subtitle C or Subtitle D approach.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-09728-5

Organization1:Intermountain Power Service Corporation (IPSC)

Commenter1: Jon A. Finlinson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2

Comment Excerpt Text:

5. EPA has not proven that Subtitle C option is actually required for safe management of CCR 

disposal. 

The EPA strongly implies that federal oversight under a Subtitle C management is the best 

option for CCR disposal. IPSC disagrees. Subtitle C will be overly burdensome, unnecessarily 

costly, and does not have the cost-benefit ratio one would expect for improved CCR oversight. 

CCR management under a Subtitle D program however can be sufficiently protective at a more 

moderate cost. The EPA's discussion in the preamble supports this. The EPA discounts the D 

option due to the "need" for federal oversight. Again, given such a low number of actual damage 

cases applicable to improper CCR disposal with limited oversight, it appears that just the slight 

nudge in the right direction where it is needed under Subtitle D would drop any potential future 

cases to zero. We believe that a review of those States where Subtitle D-like programs are in 

place prove this concept out. Also, of the proven damage cases cited, the majority were 
430

addressed through State administrative action. 

The EPA never clearly articulates in the preamble what the actual need is for federal 

enforcement and permitting beyond what States could provide if empowered under Subtitle D. 

The EPA does however make at least two assertions intimating that Subtitle C is unwarranted. 

First, it states that it believes CCR already meets universal treatment standards (UTS). Since the 

idea of Subtitle C is to ensure treatment to UTS for disposal, it is arguable that to expand this 

oversight to UTS compliant waste is unnecessary. Second, the EPA states its belief that without 

any regulations, over 90 percent of sites are already below the risk level the EPA proposes 

facilities must meet under Subtitle C.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-10755_DEN-067-4

Organization1:National Ready Mixed Concrete Association (NRMCA)

Commenter1:Dan Huffman

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

3.) Potentially stricter state laws impacting beneficial use: For example, a proposed rule in the 

state of Maryland, states that any product containing fly ash is to be disposed of in a special 

facility authorized to accept fly ash. More states will establish similar laws that will further limit 

the beneficial use of fly ash.

Response: The commenter is referred to Unit IV of the preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2011-0392-0280-5

Organization1:Strategic Environmental Analysis, LC

Commenter1:Richard Fortuna

Commenter Type: Other Company

Classification: Substantive

Comment Category:
431

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1 7.4.2

Comment Excerpt Text:

The states are in no position to take this one on alone. They are simply too leveraged by an 

industry that provides vital services, and which has gotten used to having their own way on this 

issue for 3 decades. What the Agency is witnessing from the electric utilities in the CCR 

Proposal is no different than what the chemical industry was doing at the time of Superfund’s 

consideration: current managements are simply trying to kick the can down the road by deferring 

liability/expenditures for current and past mismanagement and corner-cutting until the next 

management team takes over. No one wants to take the economic and/or liability hit for years or 

lax environmental management on their watch. The pressure to perpetuate this “deferred liability 

scheme” is most directly visited upon their local and state governments. Absent a strong RCRA 

regulatory mandate such as was contained in the Proposal, the states will be left to fend for 

themselves but few tools to prevent the next Kingston. For the sake of the residents near these 

230+ facilities, and in order to give the states the tools they truly need to fend off an unrelenting 

faction, the Agency must regulate CCRS as a RCRA “hazardous waste” with all due speed.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2011-0392-0286-2

Organization1:FirstEnergy Corp.

Commenter1:Mike Horvath

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.4.2

Comment Excerpt Text:

FirstEnergy comment:

Of the 35 states whose submittals are available in this NODA, it is important to note that all but 

one state, New Mexico, reject the concept of regulating coal combustion products as RCRA C 

hazardous waste. FirstEnergy agrees with the comments of those 34 states that RCRA C 

regulation is unnecessary. Regarding the position of New Mexico, we support any state 

determination that their state regulations should go beyond the RCRA D nationally favored 

baseline approach to coal combustion byproduct regulation . Ideally, every state has the right to 

determine the level of required regulation of their own state wastes and wastes they accept from 

other states to protect the environment and to consider the geographical, geological, and 
432

hydrologic aspects of that state.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

CommentWorks® Issue Report

Initiative: Coal Combustion Residuals Proposed Rule 

Client Name: Agency

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Number of Issues: 1

Section 7.3.3 - Other

Total Number of Submissions: 8

Total Number of Comments: 8

Comment Number: EPA-HQ-RCRA-2009-0640-06400-4

Organization1:Waste Management (WM)

Commenter1: Susan Briggum

Commenter Type: Other Company

Classification: Substantive

Comment Category:
433

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1 2.1.2 2.1.6 7.4.2

Comment Excerpt Text:

Long-term implications of EPA’s interpretation of its 4010 authority: Most of EPA’s rationale 

for considering RCRA Subtitle C regulation of CCRs derives wholly from its self-imposed 

limitation on RCRA to provide EPA regulatory authority only for hazardous wastes 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 the 

states have afforded communities under RCRA authority. Our experience under the RCRA 

Subtitle C and D programs has been comparable; under both programs, we see state regulators 

bringing expertise and rigor to the task of permitting and overseeing hazardous waste and MSW 

landfills, assuring the facilities achieve RCRA’s goal of protecting human health and the 

environment [Footnote 4: For a recent assessment of the effectiveness of EPA’s regulatory 

program for MSW landfills, see http://www.wm.com/sustainability/pdfs/Geosyntec_report_-

_Environmental_Protection_at_the_Managed_Solid_Waste_Landfill_06201.pdf.]. When EPA 

has provided the kinds of clear and detailed guidelines evident in the RCRA Subtitle C 

regulations and Subtitle D criteria for MSW landfills, state regulatory authorities responded with 

programs implementing the 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 to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans.

Comment Number: EPA-HQ-RCRA-2009-0640-06723-3

Organization1:West Virginia Department of Environmental Protection (WVDEP)

Commenter1: Gary Casto on behalf of Randy C. Huffman

Commenter Type: State Government

Classification: Substantive
434

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The inclusion of coal ash as a Subtitle C waste would also act as "defacto" elimination of 

beneficial alkaline amendment use of certain coal ashes in mining. This would noticeably inhibit 

the restoration of several acidic streams in northern West Virginia.

Response: The commenter is referred to Unit IV of the preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06808-12

Organization1:New Mexico Environment Department (NMED) and Energy, Minerals and 

Natural Resources Department (EMNRD)

Commenter1: Bill Brancard

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.7.6

Comment Excerpt Text:

Regulation under RCRA Subtitle C is more desirable because it gives New Mexico a stronger 

role and more authority to assure that CCRs are properly managed and that any existing 

contamination is cleaned up. NMED has demonstrated that it has a strong 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 completing their regulatory requirements. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-07533-26

Organization1:Nebraska Department of Environmental Quality (NDEQ)

Commenter1: David B. Haldeman
435

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.4.2

Comment Excerpt Text:

It would be helpful if EPA would clarify in its final rule how state voluntary cleanup programs 

might be used to address corrective action found necessary at CCR landfills under either a 

Subtitle C or Subtitle D approach.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-09728-5

Organization1:Intermountain Power Service Corporation (IPSC)

Commenter1: Jon A. Finlinson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2

Comment Excerpt Text:

5. EPA has not proven that Subtitle C option is actually required for safe management of CCR 

disposal. 

The EPA strongly implies that federal oversight under a Subtitle C management is the best 

option for CCR disposal. IPSC disagrees. Subtitle C will be overly burdensome, unnecessarily 

costly, and does not have the cost-benefit ratio one would expect for improved CCR oversight. 

CCR management under a Subtitle D program however can be sufficiently protective at a more 

moderate cost. The EPA's discussion in the preamble supports this. The EPA discounts the D 

option due to the "need" for federal oversight. Again, given such a low number of actual damage 

cases applicable to improper CCR disposal with limited oversight, it appears that just the slight 

nudge in the right direction where it is needed under Subtitle D would drop any potential future 

cases to zero. We believe that a review of those States where Subtitle D-like programs are in 

place prove this concept out. Also, of the proven damage cases cited, the majority were 

addressed through State administrative action. 

The EPA never clearly articulates in the preamble what the actual need is for federal 
436

enforcement and permitting beyond what States could provide if empowered under Subtitle D. 

The EPA does however make at least two assertions intimating that Subtitle C is unwarranted. 

First, it states that it believes CCR already meets universal treatment standards (UTS). Since the 

idea of Subtitle C is to ensure treatment to UTS for disposal, it is arguable that to expand this 

oversight to UTS compliant waste is unnecessary. Second, the EPA states its belief that without 

any regulations, over 90 percent of sites are already below the risk level the EPA proposes 

facilities must meet under Subtitle C.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-10755_DEN-067-4

Organization1:National Ready Mixed Concrete Association (NRMCA)

Commenter1:Dan Huffman

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

3.) Potentially stricter state laws impacting beneficial use: For example, a proposed rule in the 

state of Maryland, states that any product containing fly ash is to be disposed of in a special 

facility authorized to accept fly ash. More states will establish similar laws that will further limit 

the beneficial use of fly ash.

Response: The commenter is referred to Unit IV of the preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2011-0392-0280-5

Organization1:Strategic Environmental Analysis, LC

Commenter1:Richard Fortuna

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1 7.4.2

Comment Excerpt Text:

The states are in no position to take this one on alone. They are simply too leveraged by an 

industry that provides vital services, and which has gotten used to having their own way on this 
437

issue for 3 decades. What the Agency is witnessing from the electric utilities in the CCR 

Proposal is no different than what the chemical industry was doing at the time of Superfund’s 

consideration: current managements are simply trying to kick the can down the road by deferring 

liability/expenditures for current and past mismanagement and corner-cutting until the next 

management team takes over. No one wants to take the economic and/or liability hit for years or 

lax environmental management on their watch. The pressure to perpetuate this “deferred liability 

scheme” is most directly visited upon their local and state governments. Absent a strong RCRA 

regulatory mandate such as was contained in the Proposal, the states will be left to fend for 

themselves but few tools to prevent the next Kingston. For the sake of the residents near these 

230+ facilities, and in order to give the states the tools they truly need to fend off an unrelenting 

faction, the Agency must regulate CCRS as a RCRA “hazardous waste” with all due speed.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2011-0392-0286-2

Organization1:FirstEnergy Corp.

Commenter1:Mike Horvath

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.4.2

Comment Excerpt Text:

FirstEnergy comment:

Of the 35 states whose submittals are available in this NODA, it is important to note that all but 

one state, New Mexico, reject the concept of regulating coal combustion products as RCRA C 

hazardous waste. FirstEnergy agrees with the comments of those 34 states that RCRA C 

regulation is unnecessary. Regarding the position of New Mexico, we support any state 

determination that their state regulations should go beyond the RCRA D nationally favored 

baseline approach to coal combustion byproduct regulation . Ideally, every state has the right to 

determine the level of required regulation of their own state wastes and wastes they accept from 

other states to protect the environment and to consider the geographical, geological, and 

hydrologic aspects of that state.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 
438

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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Section 7.4.1 - EPA solicits comment on states’ concerns that any federal regulation under 

RCRA Subtitle D has potential to cause disruption to states’ implementation of CCR 

regulatory programs under their own authorities, including more specifics on potential 

procedural difficulties for state programs, and any measures that EPA might adopt to try 

to mitigate these effects (35158, 35224)

Total Number of Submissions: 46

Total Number of Comments: 87

Comment Number: EPA-HQ-RCRA-2009-0640-01418-1

Organization1:Zephyr Environmental Corporation

Commenter1: Paul C. Moore

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.7 4.4.5.1.1 4.4.7.2 4.4.7.4
439

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 impact 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 statute. 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 either 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 Agency appreciates and acknowledges this comment. The commenter is 

referred to Unit V of the preamble for a discussion of the Agency’s rationale to require only 

qualified professional engineers (as defined in the rule) to certify technical demonstrations of 

the owner or operator. 

Comment Number: EPA-HQ-RCRA-2009-0640-03444-1

Organization1:Kansas Department of Health and Environment

Commenter1: William L. Bider

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1

Comment Excerpt Text:

As proposed, this regulation will significantly impact the State of Kansas in numerous ways 

regardless of whether EPA decides to regulate disposal under Subtitle C or Subtitle D. Changes 

in either proposed option are needed to avoid unnecessary adverse impacts to state regulatory 

programs, private businesses, and human health and the environment. In general, this proposal, 

including the Subtitle D approach, applies a regulatory scheme which does not include the 

appropriate level of flexibility to consider and allow what is necessary and appropriate in all 

geologic and climatic settings.
440

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule, Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-03444-12

Organization1:Kansas Department of Health and Environment

Commenter1: William L. Bider

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.3.1

Comment Excerpt Text:

Kansas would also like to emphasize that states are best equipped to make beneficial use 

determinations for CCR, whether the uses are in construction or agricultural applications. EPA's 

rule should include provisions to delegate this responsibility to states along with the authority to 

issue permits for disposal areas (both landfills and surface impoundments) under Subtitle D.

In summary, Kansas believes the best approach to regulating CCR nationally is to develop 

regulations under Subtitle D, including a required permitting program, that can be administered 

by states. The permitting program should allow states flexibility to consider local conditions as 

they relate to the design of liners, leachate management, and final covers. The beneficial use 

aspects to this rule should also be delegated to approved state agencies.

Response: The commenter is referred to Unit IV of the preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-03444-3

Organization1:Kansas Department of Health and Environment

Commenter1: William L. Bider

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Kansas recognizes that all states may not have similar regulatory programs that provide these 

safeguards; however, EPA should not promulgate new CCR regulations that would adversely 

impact proven state regulatory programs such as in Kansas. Any federal regulations should 
441

establish minimum requirements to be applied to facilities in states where no approvable state 

regulatory program exists, but they should allow states to demonstrate that their regulatory 

programs are adequately protective.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule, Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-03444-7

Organization1:Kansas Department of Health and Environment

Commenter1: William L. Bider

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1.1 4.4.8.5

Comment Excerpt Text:

While a Subtitle D regulatory approach is preferred by the State of Kansas, the proposed 

regulations under this approach also should be amended. The proposed regulations do not 

provide states with flexibility to consider alternative liners, leachate management methods, or 

final covers considering variable local conditions with respect to soil types, depth to 

groundwater, distance from surface water, and annual precipitation. The prescriptive one-sizefits-all conservative approach is unnecessary in areas where local conditions provide an adequate 

and preferred degree of natural protection.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule, Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-04003-4

Organization1:Environmental Council of the States (ECOS)

Commenter1: Lia Parisien on behalf of John W. Mitchell
442

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1

Comment Excerpt Text:

Regardless of whether the Subtitle C or Subtitle D approach is adopted by EPA, there will be 

significant effects on state waste management programs.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule, Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

_____________________________________________________________________

Comment Number: EPA-HQ-RCRA-2009-0640-04003-6

Organization1:Environmental Council of the States (ECOS)

Commenter1: Lia Parisien on behalf of John W. Mitchell

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Should EPA propose the more logical Subtitle D approach, state programs need to assess their 

solid waste program capability to oversee the resulting work.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule, Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06128-13

Organization1:Owensboro Municipal Utilities

Commenter1: Kevin D. Frizzell

Commenter Type: Electric Utility Company

Classification: Substantive
443

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

While EPA's Subtitle D option would impose substantial costs on utility operations, it would not 

discourage CCR beneficial use and is nowhere near as disruptive to state waste management 

programs as is the Subtitle C hazardous waste option.

Response: The commenter is referred to Unit IV of the preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06198-3

Organization1:Ameren Corporation

Commenter1: Paul R. Pike

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

II. State Implementation 

While Ameren supports the Subtitle D Prime option (with the adjustments discussed below), a 

major shortcoming of this approach, as well as with the other Subtitle D alternatives, is the lack 

of any mechanism for qualified state programs to step in and directly administer the Subtitle D 

CCR regulations where the state programs meet or exceed the federal controls. One of the 

Agency's primary reasons for concluding in its 2000 Regulatory Determination that CCRs do not 

warrant Subtitle C regulation was Congress's admonition in the Bevill Amendment against 

duplication of efforts by other federal and state agencies. Unfortunately, EPA has failed to 

adhere to this congressional directive in the proposed Subtitle D regulatory alternatives, 

including the Subtitle D Prime option. 

EPA clearly must have recognized the nature of state programs in their preamble discussion on a 

"state first concept under a Subtitle C program. EPA asked for comments on whether certain 

state programs can be evaluated and maintained rather than imposing Subtitle C requirements on 

CCRs (75 FR 35220-35221). This has been called the "state first" approach, whereby EPA would 

delay implementation of a federal rule for a specific period of time to enable states to adopt 

enforceable Subtitle D rules that are protective of human health and environment and approved 

by EPA. Since EPA had considered this concept for Subtitle C it would make even more sense to 

implement this approach under a Subtitle D program. 

EPA should be well aware that there are many mature state CCR regulatory programs with 

permitting, liner, and groundwater monitoring controls similar to those proposed in the Subtitle 

D options. in fact, EPA concluded in its 2000 Regulatory Determination that state CCR controls 

have "substantially improved over the last 15 years," and that a "high percentage of states had 
444

authority to impose protective management standards on surface impoundments and landfi11s, 

especially for groundwater monitoring, liners, and leachate collection .... " 

Under a dual regulatory approach, for example, an owner/operator of a CCR disposal facility 

could be found to be in non-compliance with a groundwater monitoring requirement that is 

contained in both the Subtitle D self-implementing rule and in an independently administered 

state regulatory program. In these circumstances, the owner/operator could be subject to a citizen 

suit enforcement action in federal court for alleged violation of the self-implementing Subtitle D 

rule, and to a wholly separate enforcement action in state court for violation of the parallel state 

requirement. This makes no sense; apart from the waste of federal and state judicial resources, it 

could result in inconsistent federal and state court determinations with respect to an identical 

regulatory requirement. It also could result in duplicative federal and state penalties for 

essentially the same regulatory infraction. 

It is important that any final Subtitle D rules for CCRs include a mechanism for qualified state 

programs to administer the rules in lieu of the self-implementing approach set forth in the 

proposal. EPA should be able to develop a process for evaluating state CCR controls and 

determining whether state controls are no less stringent than the final Subtitle D controls (much 

like EPA does now in the case of municipal solid waste landfills under 40 C.F.R. Part 258). In 

those states that have qualifying controls for CCRs, EPA would allow the states to administer the 

controls to avoid the duplication of regulatory programs, with appropriate EPA backup. In this 

way, many of the self-implementing procedures in the Subtitle D approach could be eliminated 

as there would be a qualified state regulatory body with responsibility for ensuring compliance 

with the applicable requirements. This approach would allow for the requisite degree of state 

involvement in administration of the CCR rules that EPA concluded was appropriate in its 

Report to Congress and final Regulatory Determinations, and avoid duplication of regulatory 

controls as directed by the Bevill Amendment.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule, Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06203-10

Organization1:Arizona Public Service Company (APS)

Commenter1: Scott Davis

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1 7.1.2.2
445

Comment Excerpt Text:

A. Mechanism for State Implementation of CCR Rules

While APS supports the Subtitle D Prime option, a major shortcoming of this approach, as well 

as with the other Subtitle D alternatives, is the lack of any mechanism for qualified state 

programs to step in and directly administer the Subtitle D CCR regulations, where the state 

programs meet or exceed the federal controls. Such an approach makes no practical sense, and it 

would result in parallel and redundant regulatory programs for the same materials. Many states 

have regulatory programs in place that meet or exceed the Subtitle D standards in EPA's proposal 

and for this reason APS believes the D-Prime option should allow qualified state programs to 

administer the federal program.

For example, the Arizona Department of Environmental Quality ("ADEQ") administers the 

Aquifer Protection Permit program ("APP Program"). This is a comprehensive program that 

protects the state's groundwater resources by a combination of discharge reduction through use 

of Best Available Demonstrated Control Technology ("BADCT") and compliance with Aquifer 

Water Quality Standards ("AWQS") at the applicable Point of Compliance ("POC").

A permitee is required to "...ensure the greatest degree of discharge reduction achievable through 

application of the best available demonstrated control technology, processes, operating methods 

or other alternatives, including, where practicable, a technology permitting no discharge of 

pollutants." Arizona Revised Statutes § 49243. B.1. Pollutants discharged from the permitted 

facility may not exceed an AWQS at the applicable POC. The POC is located down gradient of 

the site at the edge of the Pollution Management Area ("PMA"). There are both numeric and 

narrative standards that apply and all aquifers are protected for drinking water use and the 

AWQSs are drinking water standards. In addition, if the ambient water quality of the aquifer 

exceeds an AWQS, no pollutant discharged may further degrade the water quality at the 

applicable POC.

The program is broad in scope and detailed in its requirements. All facilities that discharge are 

required to obtain an Aquifer Protection Permit (APP). The definition of discharge is "...the 

addition of a pollutant from a facility either directly to an aquifer or to the land surface or the 

vadose zone in such a manner that there is a reasonable probability that the pollutant will reach 

an aquifer." Arizona Revised Statutes § 49-201.12. In addition to this general requirement, many 

facilities are categorically defined as discharging facilities. These include surface impoundments 

and solid waste landfills. Arizona Revised Statutes § 49-241 .B 1. An aquifer is defined as "a 

geologic unit that contains sufficient saturated permeable material to yield usable quantities of 

water to a well or spring." Arizona Revised Statutes § 49-201.2. The APP regulations further 

define the term "usable quantities" to mean "...five gallons of water per day." Arizona 

Administrative Code R18-11-501.4.

The major components/requirements of an APP are listed below:

• BADCT
446

• Compliance with AWQSs at the POC

• Technical Capability

• Financial Capability

• Zoning

The aquifer protection permit program is designed to protect groundwater quality using a two 

tiered approach. The first level of protection is discharge reduction through the use of BADCT. 

The goal of the BADCT requirement is to prevent to the greatest extent possible the discharge of 

pollutants to the aquifer. In fact as noted above, the BADCT design must, where practicable, 

include alternative technologies permitting no discharge of pollutants. Permits include inspection 

and monitoring requirements to insure that the facility BADCT performs as designed.

The second level of defense is the requirement to meet AWQSs at the applicable POC. Arizona 

Revised Statutes § 49-243. The POC is located in the shallow most aquifer at the downgradient

edge of the PMA. For example, the PMA for a surface impoundment is the outer edge of the 

impoundment. The POC must also be located to ensure protection of all current and reasonably 

foreseeable future uses of the aquifer. Arizona Revised Statutes § 49-244.

The permittee must also show that they have the technical and financial capability to construct, 

operate and eventually close the facility. Arizona Administrative Code R18-9-A203. Design 

plans and most required technical reports require submittal by a registered engineer or geologist. 

The permittee must also submit financial information on the costs to construct and operate, and 

the cost associated with post closure and closure of the facility. The permit would not be issued 

without presenting an approved method of financial assurance. This showing can take the form 

of a surety bond, certificate of deposit, trust fund, letter of credit, insurance policy, cash deposit, 

or financial guarantees. ADEQ can withdraw approval to operate if there is evidence that the 

permittee would lose the capability to meet the requirements for financial assurance.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule, Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
447

Comment Number: EPA-HQ-RCRA-2009-0640-06203-12

Organization1:Arizona Public Service Company (APS)

Commenter1: Scott Davis

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Working in tandem, the ADEQ Aquifer Protection Permit Program and the ADWR Dam Safety 

Program meet or exceed the Subtitle D standards in EPA's proposal, and it makes no practical 

sense not to allow states with qualified programs, in this case Arizona, to administer the federal 

Subtitle D program. To do otherwise would result in parallel and redundant regulatory programs 

for the same materials.

Under a dual regulatory approach, for example, an APS could be found to be in non-compliance 

with a groundwater monitoring requirement that is contained in both the Subtitle D selfimplementing rule and in ADEQ's APP Program. In such a circumstance, APS could potentially 

be subject to a citizen suit enforcement action in federal court for alleged violation of the selfimplementing Subtitle D rule, and to a wholly separate enforcement action in state court for 

violation of the parallel ADEQ requirement. This makes no sense; apart from the waste of 

federal and state judicial resources, it could result in inconsistent federal and state court 

determinations with 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 qualified state 

programs to administer the rules in lieu of the self-implementing approach set forth in the 

proposal. As discussed in comments submitted by USWAG, EPA could readily develop a 

process for evaluating state CCR controls and determining whether state controls are no less 

stringent than the final Subtitle D controls (much like EPA does now in the case of municipal 

solid waste landfills under 40 C.F.R. Part 258). In those states that have qualifying controls for 

CCRs, EPA would allow the states to administer the controls to avoid the duplication of 

regulatory programs, with appropriate EPA backup. In this way, many of the self-implementing 

procedures in the Subtitle D approach could be eliminated as there would be a qualified state 

regulatory body with responsibility for ensuring compliance with the applicable requirements. 

This approach would allow for the requisite degree of state involvement in administration of the 

CCR rules that EPA concluded was appropriate in its Report to Congress and final Regulatory 

Determinations, and avoid duplication of regulatory controls.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule, Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
448

Comment Number: EPA-HQ-RCRA-2009-0640-06254-23

Organization1:Sunflower Electric Power Corporation

Commenter1:Paul E. Reynolds

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4 4.4.5

Comment Excerpt Text:

While a Subtitle D regulatory approach is the preferred option from Sunflower Electric’s 

perspective, there is a need for some “tweaking”. The proposed regulations do not provide 

sufficient flexibility to consider alternative liners, leachate management methods, or final covers 

to accommodate variables in local conditions such as soil types, depth to groundwater, distance 

from surface water, and annual precipitation. The prescriptive one-size-fits-all approach 

unnecessarily ties the hands of state regulators and prevents them from tailoring permits to match 

the landfill design requirements to actual physical circumstances. For example, many aspects of 

the design imposed in the proposed regulation may be unnecessary in areas where local 

conditions provide an adequate and preferred degree of natural protection.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule, Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

_____________________________________________________________________

Comment Number: EPA-HQ-RCRA-2009-0640-06260-103

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5

Comment Excerpt Text:

The Commonwealth of Kentucky favors the Subtitle D approach as being the less disruptive of 

the two major proposals. However, we recommend the following additions:

-Elimination of Professional Engineer and Professional Geologist certifications in the absence of 

prior state agency review. We suggest instead the permit application review program envisioned 

by 40 CFR 239 for state MSW landfill programs.
449

-Detailed Subtitle D regulations that states would incorporate with lining requirements and 

enhanced monitoring including variance provisions similar to those found at 40 CFR 258 for 

MSW landfills;

-Financial Assurance for closure, post-closure, groundwater corrective action and non-utility 

dike integrity under Subtitle D instead of the proposed overly broad CERCLA;

-Funding based on the anticipated permitting, closure and inspection workload for states to 

implement these rules. Kentucky estimates the need for six to twelve additional person-years to 

implement these provisions.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule, Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

___________________________________________________________________

Comment Number: EPA-HQ-RCRA-2009-0640-06260-20

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5 4.6.1

Comment Excerpt Text:

Subtitle D effective date:

Because of the process for promulgating regulations in Kentucky (Please refer to 

http://www.lrc.ky.gov/KRS/013A00/CHAPTER.HTM for the Kentucky regulation development 

process), it will require a longer period for developing and incorporating regulations. This is 

particularly true if EPA does not promulgate national solid waste regulations for states to 

implement that comprehensively address disposal, the permitting process, public notice, state 

delegation and funding. Kentucky requests five years to develop regulations and issue the 

permits and an additional 5 years from the effective date of the Kentucky regulations for a total 

of 10 years from the effective date of the national rule for liners and groundwater monitoring for 

landfills and surface impoundments. Since independent self-certification by professionals would 

be a problem, the Commonwealth prefers a full regulatory program.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 
450

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule, Furthermore, the commenter is 

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-2009-0640-06260-22

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5 4.2.2

Comment Excerpt Text:

EPA Funding and Support of State Programs

Even under Subtitle D, the department would be at a severe timing and funding disadvantage. In 

these challenging economic times, state general funding, which is the cornerstone of solid waste 

funding, adsorbs most of the agency cuts and is well below previous levels. EPA is proposing a 

self-certification process by independent professional engineers and geologists. This signals to 

some legislators that our agency should not be involved in the process, thus undercutting our 

legitimacy for agency funding requests during the biennium budget and fee process and affects 

our ability to provide oversight, which we feel is essential. Kentucky requests that the agency 

delay the 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 IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule, Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06275-26

Organization1:Lansing Board of Water and Light (BWL) and Michigan State University 

(MSU)

Commenter1: Jeffrey L. Woolstrum

Commenter Type: Electric Utility Company

Classification: Substantive
451

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

To make matters worse, the proposed Subtitle D CCR landfill requirements are different from 

and, in some cases conflict with, the requirements imposed on existing MSW landfills regulated 

under EPA-approved state Subtitle D programs. Thus, MSW landfills that also receive CCRs 

would be subject to competing and overlapping state and federal requirements, driving up the 

cost of all waste disposal. Finally, as discussed in the next section of these Comments, the 

burdens imposed by the Subtitle C option far outweigh any benefits of that option.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. It is important to note in the 

applicability section that EPA is not regulating municipal solid waste landfills that receive CCR 

for disposal or daily cover. 

Comment Number: EPA-HQ-RCRA-2009-0640-06280-11

Organization1:South Carolina Department of Health and Environmental Control

Commenter1:Daphne Neel

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1

Comment Excerpt Text:

In summary, the Department believes that those states like South Carolina that have existing 

statutes and regulation in place to regulate CCR should be allowed to continue to do so, and that 

federal regulation would create unnecessary duplication, confusion, and barriers that would not 

result in any greater environmental or public health protection. However, if EPA chooses to 

move forward with a regulation, it should do so under Subtitle D with provisions to allow states 

to administer their own programs that are equivalent or more stringent than the federal 

regulation.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
452

Comment Number: EPA-HQ-RCRA-2009-0640-06280-16

Organization1:South Carolina Department of Health and Environmental Control

Commenter1:Daphne Neel

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

South Carolina implements and enforces comprehensive solid waste management and water 

programs that adequately address the management, disposal, and reuse of CCR. Most of the 

technical requirements addressed by the proposed Subtitle D regulation are already addressed by 

state regulation and, in some instances, the state's requirements are more stringent than those 

proposed by EPA. If EPA proceeds with regulating CCR under Subtitle D, the Department 

strongly recommends that provisions be added whereby EPA has a process that acknowledges 

states with existing solid waste regulatory programs that are equivalent to the minimum national 

criteria in the federal regulation, and authorizes those states to implement and enforce the federal 

regulation.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06280-17

Organization1:South Carolina Department of Health and Environmental Control

Commenter1:Daphne Neel

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.1

Comment Excerpt Text:

Making the proposed Subtitle D regulation self-implementing, and placing the state in the role of 

a citizen enforcer under citizen suit provisions of RCRA 7002 is an untenable position for those 

states that already have a robust solid waste management program. By EPA's own statement, 

under the proposed Subtitle D regulation, "facilities can comply without interaction with a 

regulatory agency." Yet, these same facilities must already interact with the Department on 

permit applications, consistency reviews, operating and design requirements, groundwater 

monitoring, closure and post-closure requirements, and financial assurance. To attempt to parse 
453

through the federal requirements and treat them separately from the state's program is 

unworkable for industry as well as the Department. There will be state requirements that are in 

conflict with, in addition to, or separate from the federal requirements. The Department cannot 

be placed in a position whereby it seeks to enforce compliance with its state requirements 

through the administrative enforcement process while at the same time proceeding to enforce 

similar or overlapping requirements through the RCRA 7002 citizen suit provision.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06280-18

Organization1:South Carolina Department of Health and Environmental Control

Commenter1:Daphne Neel

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.7

Comment Excerpt Text:

If EPA 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 equivalent 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 regulation of CCR, 

and that states may be more stringent than the federal requirements. This clarification could be 

placed in Section 257.50 of the proposed regulation, thereby strengthening the language 

concerning the applicability of other regulations.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06280-2

Organization1:South Carolina Department of Health and Environmental Control
454

Commenter1:Daphne Neel

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1

Comment Excerpt Text:

However, if EPA moves forward with a final rule, the Department believes that the preferred 

approach should be regulation under Subtitle D, provided that changes are made to the rule that 

acknowledge and allow flexibility in states like South Carolina that already have comprehensive 

solid waste management and water programs in place.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06300-3

Organization1:Southern Company on behalf of itself and its four subsidiaries: Alabama 

Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power 

Company

Commenter1: Chris M. Hobson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1

Comment Excerpt Text:

a. EPA’s Distrust of the States Is Unwarranted, Unsupported by the Record, and Contrary to the 

Statute. 

Southern Company’s service territory utilities operate in four different states. The regulatory 

programs of those states (as discussed in Part VI below) represent a microcosm of the variety of 

regulatory approaches around the nation. Some states have extensive experience regulating 

CCBs in a manner similar to solid waste, while others impose few solid waste restrictions. Some 

states provide regulatory oversight of beneficial uses, while others do not. 

EPA refers to states that have not developed RCRA-type regulations for CCBs as a basis to 

question the states’ ability to implement a CCB program under Subtitle D. However, reference to 

the status quo is not predictive in the context of CCBs for a simple and obvious reason: EPA has 

not promulgated regulatory standards for CCBs, and under the Bevill amendment, states are not 
455

required to take action until EPA provides regulatory direction. [Footnote 18: See 42 U.S.C. 

6921(b)(3).] The question for today is what the states will do if and when EPA adopts Subtitle D 

standards. The only meaningful way to assess this question is to review the response of the states 

to Subtitle D standards in the past. If EPA has issued Subtitle D guidance for solid waste streams 

for which EPA lacked direct enforcement authority, and states and industry have failed to 

respond in a manner EPA would deem appropriate, that set of facts might inform deliberations 

on the question of how the states would respond to Subtitle D standards for CCBs. [Footnote 19: 

Given the magnitude of CCB disposal and management and its association with a critically 

important public utility, i.e., the delivery of electric energy, it is also possible that any given state 

is more likely to take direct responsibility for regulating CCB disposal under a Subtitle D 

standard compared to other forms of solid waste. The point is that EPA has not developed 

sufficient information in the record to assess the question in any meaningful way.] However, 

EPA has made no effort to address that question. Rather, EPA assesses state performance in an 

area where EPA itself has had authority to take regulatory action for more than thirty years and 

has declined to do so. The present status of state regulation of CCBs has more to do with EPA’s 

own regulatory treatment of CCBs than any deficiency of the state agencies. 

EPA should acknowledge the reality that CCBs are a high volume, low toxicity solid waste. The 

TVA incident had nothing to do with the characteristics of coal ash as such, which is a key 

question in deciding between Subtitles C and D. Rather, the Kingston incident resulted from the 

mismanagement of a large volume of waste. There is absolutely nothing about Subtitle C that 

makes it better suited to addressing that kind of issue than Subtitle D; again, the only significant 

difference is the role of the states. 

EPA may not be pleased with the respective regulatory roles of EPA and the states under RCRA 

Subtitle D. Nevertheless, how and to what extent EPA is involved with the regulation of high 

volume solid waste has already been determined by Congress. It is neither appropriate nor legal 

for EPA to force CCBs into a Subtitle C program simply because EPA has a preference for the 

administrative and enforcement tools of Subtitle C. EPA should not use RCRA Subtitle C as a 

way to commandeer enforcement authority from the states. Congress has decided that the states 

are capable of implementing and enforcing solid waste programs. In the absence of a 

determination that states will not be capable of responding to Subtitle D guidance, based on 

evidence and an explanation of the agency’s rationale, it is not for EPA to second-guess the 

decision of Congress with respect to EPA’s regulatory role. 

EPA has recognized the importance of site-specific and region-specific factors when dealing 

with CCBs, and the state agencies are better prepared than EPA to address those issues and be 

the principal regulators of CCBs. The state agencies have the greatest experience and expertise 

with respect to the site- and region-specific factors and controls that are best suited to address 

CCBs. 

Moreover, as EPA acknowledges, states and the regulated community have made significant 

advances in CCB management in recent years. [Footnote 20: 75 Fed. Reg. at 35150.] EPA 

concluded in its 2000 CCB Regulatory Determination that “with the exception of relatively few 

states, the regulatory infrastructure is generally in place at the state level to ensure adequate 

management of these wastes.” [Footnote 21: 65 Fed. Reg. at 32217.] EPA and the Department of 
456

Energy (“DOE”) further found in their joint 2007 Report of state CCB controls that “[t]he data 

and analyses documented in this report provide new information that appears to show improved 

management of CC[B]s in both landfills and surface impoundments.” [Footnote 22: DEBORAH 

ELCOCK & NANCY L. RANEK, COAL COMBUSTION WASTE MANAGEMENT AT 

LANDFILLS AND SURFACE IMPOUNDMENTS, 1994-2004 S-11 (2006), 

http://www.fossil.energy.gov/programs/powersystems/pollutioncontrols/coal_waste_repo rt.pdf 

[hereinafter “DOE/EPA REPORT”]. ] In September 2008, the Environmental Council of the 

States (“ECOS”) issued a resolution that states already have regulations in place that apply to 

CCBs and that a federal regulation is not necessary. The 2008 ECOS resolution was revised in 

March 2010 and calls upon EPA to conclude that federal CCB regulations would be duplicative 

of most state programs, are unnecessary, and should not be adopted, but if adopted must be 

developed under RCRA Subtitle D rather than RCRA Subtitle C. [Footnote 23: See 

Environmental Council of the States [ECOS], The Regulation of Coal Combustion Products, 

Revised Res. 08-14 (Mar. 23, 2010), available at 

http://www.ecos.org/files/4018_file_Resolution_08_14_2010_version.doc.] ECOS—

[a]grees with U.S. EPA’s finding in the 2005 study . . . that “the regulatory infrastructure is 

generally in place at the state level to ensure adequate management of these wastes” and believes 

that states should continue to be the principal regulatory authority . . . as they are best suited to 

develop and implement CC[B] regulatory programs. [Footnote 24: Id.] 

Based on its findings in the 2000 final Regulatory Determination and the supplemental 2007 

joint EPA/DOJ report of state CCB programs, EPA is well aware that there are many mature 

state CCB regulatory programs with permitting, liner, and groundwater monitoring controls 

similar to those proposed in the Subtitle D options. In fact, EPA concluded in its 2000 final 

Regulatory Determination that a “high percentage of states had authority to impose protective 

management standards on surface impoundments and landfills, especially for groundwater 

monitoring, liners, and leachate collection . . . .” [Footnote 25: 65 Fed. Reg. at 32229.] 

In any event, a program for the management of CCBs would require states to apply essentially 

the same methods that are currently in place for existing programs regulating other waste streams 

under Subtitle C and D. States already have the expertise needed to oversee construction and 

operation of landfills and impoundments, groundwater monitoring, closure, and all the other 

elements that may apply in any new CCB program. [Footnote 26: For additional discussion on 

this point, see Part VI.A below. ] The regulatory issues associated with CCB disposal are 

essentially of the same nature as those that the states already address through existing Subtitle C 

and Subtitle D programs. 

Under EPA’s Subtitle D proposal, state controls would be administered in addition to and 

without coordination with nearly identical, self-implementing federal controls. Such duplication 

is both unnecessary and unduly burdensome. Therefore, when crafting a Subtitle D regulation, 

EPA should make state flexibility a priority. EPA should enable states to tailor standards based 

on the type of ash generated, the characteristics of that ash, the land disposal methods used, the 

type of geology in the area, and the site’s groundwater conditions
457

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06300-88

Organization1:Southern Company on behalf of itself and its four subsidiaries: Alabama 

Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power 

Company

Commenter1: Chris M. Hobson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

3. Any Federal CCB Regulations Should Account for Florida’s Regulatory Programs. 

As set forth above, Florida’s approved Subtitle D programs for MSWLFs and groundwater 

protection program effectively address CCB disposal in Florida. 

However, EPA’s Subtitle D proposal fails to include important components, namely a 

mechanism for approval of effective state programs, like Florida’s, and the necessary statespecific flexibility for alternatives to the minimum criteria proposed by EPA. A prime example is 

Florida’s double HDPE geomembrane liner system, provided for in Florida’s Solid Waste 

Management Rule, which has been demonstrated to be an effective alternative to composite liner 

systems much like the one EPA has proposed in its rule coproposals. 

While preferable to regulation under Subtitle C, a Subtitle D Prime approach that is inflexible, 

rigid, and prescriptive and that fails to recognize state-specific natural environments and 

expertise is no panacea

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
458

Comment Number: EPA-HQ-RCRA-2009-0640-06356-6

Organization1:U.S. Chamber of Commerce

Commenter1: William L. Kovacs

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

D. The U.S. Chamber opposes EPA’s proposal to create new RCRA Subtitle D requirements for 

CCRs. The record demonstrates federal coal ash regulations will duplicate and encroach on 

existing State regulatory programs. 75 Fed. Reg. at 35144 (citation omitted). Also, if Subtitle D 

should be modified to create a specialized CCR regulatory regime, then legislative action by 

Congress is the only appropriate means for doing so. EPA lacks the statutory authority to create 

one RCRA Subtitle D regime for CCRs and one for all other non-hazardous wastes, especially as 

EPA cites no evidence CCRs and CCR disposal facilities pose qualitatively or quantitatively 

different risks than any other Subtitle D waste disposal facilities. See 75 Fed. Reg. at 35193-

35213

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06360-63

Organization1:ARIPPA

Commenter1: Jeff A. McNelly

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1

Comment Excerpt Text:

EPA has estimated that if the RCRA Subtitle D proposal is adopted, only 52% of the states 

would comply, whereas adoption of a RCRA Subtitle C proposal would assure 100% state 

participation. There is no evidence to support such estimation, and, in any event, the regulatory 

program should be based on valid scientific data and field experience, rather than guesswork.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to the RIA volume of the response to comment document supporting this rule for a 

response to this comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06409-9

Organization1:State of Alaska

Commenter1: Kristin J. Ryan

Commenter Type: State Government
459

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The proposed Subtitle D regulations also have the potential to create a dual regulatory scheme in 

which CCR landfills will be subject to both Alaska's Subtitle D permitting program and the selfimplementing regulations proposed as 40 CFR 257, Subpart D. In fact, EPA admits that facilities 

will need to comply with the proposed regulations independently of state regulations that differ 

from the proposed regulations. This will not only create a confusing regulatory situation for 

landfill operators but, because different standards could apply under the different regulatory

programs, it is possible a CCR landfill could be approved under one set of regulations but not 

under the other. The ADEC does not find anything in the proposed regulations that provides 

guidance for how to deal with conflicting requirements between state and federal requirements.

For the EPA, the main deficiency in regulating CCRs under RCRA Subtitle D is the agency's 

lack of authority to require permits for landfills that don't receive hazardous wastes. This 

thinking ignores the fact that 86% of states in which CCRs are generated already require permits 

for CCR landfills. [Footnote 7: Letter from ASTSWMO to Matt Hale, EPA, dated April I , 2009. 

Available at http://astswmo.org/files/publications/Positionpapers/ASTSWMO-CCB-letterattachments-v2.pdf]

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06411-11

Organization1:Alabama Department of Environmental Management (ADEM)

Commenter1: Gerald Hardy

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1 7.1

Comment Excerpt Text:

It is our firm contention that Alabama's solid waste program is more than sufficient to adequately 

implement the regulatory requirements in the proposed Subtitle D option. While there may be 

resource issues that come to bear related to the potential increase in workload due to this 

proposed option, the same concerns would exist with the Subtitle C option. In fact, as stated 

earlier, the demands for State implementation of the Subtitle C option would be even more 
460

taxing on our existing resources. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06415-13

Organization1:The Virginia Coal Association, Inc. (VCA)

Commenter1: John T. Heard

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.3.7 7.3.1

Comment Excerpt Text:

• Based on information the VCA has received from DEQ concerning the projected costs to the 

state of EPA's proposed alternative approaches, both approaches will impact Virginia's strained 

budget. The additional costs resulting from either approach will in all likelihood be passed along 

to permit holders (i.e. power producers and the coal industry) in the form of higher fees. Virginia 

predicts that under the Subtitle C proposal an additional $350,000 per year will be needed to 

implement the program. Under the Subtitle D proposal, Virginia predicts an additional $76,000 

per year will be needed. These costs would be for a program that is unnecessary in Virginia -

Virginia's current comprehensive coal combustion waste regulatory program is already protective

of human health and the environment.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06416-71

Organization1:Wisconsin Department of Natural Resources (WI DNR) and Public Service 

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government
461

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.2

Comment Excerpt Text:

Section XI on p. 35211 of the preamble, entitled Impact of Sub D alternative on State programs, 

states that the proposed rule has no effect on state rules. It also states that CCR landfill owners 

would have to comply with all elements of the self-implementing proposed RCRA Sub D CCR 

rules, more or less regardless of the content of State rules. We believe that it is essential that the 

proposed rule recognize that State rules will apply to CCR landfills and to include a provision 

that States can approve CCR landfill with features that differ from the proposed rule 

requirements. As noted in several sections above, there are aspects of the proposed rule that may 

be less stringent than State rules or which address variations in engineering design or materials, 

climatic factors, or geologic situations that the proposed rule does not address or is in 

contradiction with modern technical or geotechnical practice. It is essential that State rules and 

review actions be allowed to modify requirements in the proposed RCRA Sub D selfimplementing 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 IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06416-77

Organization1:Wisconsin Department of Natural Resources (WI DNR) and Public Service 

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1

Comment Excerpt Text:

Section XIV, p. 35224 of the preamble, subheading “State Programs”, requests feedback on 

current State regulatory approaches to CCR and any potential for the proposed federal 

regulations to cause disruption of State implementation of CCR regulation under State authority. 

Previous comments have pointed aspects of the proposed rules that have potential to disrupt 

implementation of Wisconsin rules and authority, including provisions for zone of saturation 

liner designs, gradient control system designs, and use of non-standard construction material 

such as geosynthetic clay liners. Subsequent sections also point out the major disruption that will 
462

occur with Wisconsin’s beneficial use program. Rule writing to implement the Subtitle C option 

will in and of itself cause major, unnecessary workload and disruption due to diversion of staff 

and resources to hazardous waste rule revisions. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06416-79

Organization1:Wisconsin Department of Natural Resources (WI DNR) and Public Service 

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1

Comment Excerpt Text:

Wisconsin solid waste (NR 500 series) rules are already nearly fully compliant with the technical 

details in the proposed rules for landfills. Any differences can be dealt with in short order by use 

of our codified plan review and approval process. Our solid waste disposal rules do not address 

surface impoundments, but any facility that might be considered a surface impoundment can be 

addressed by our general authority for processing facility rules. Feedback from the Wisconsin 

utility industry indicates that any facilities that might be considered surface impoundments will 

be taken out of service in the near future. 

Based on the technical details in the proposed rules, we could incorporate any necessary changes 

into our existing rules, including any language regarding surface impoundments. However, we 

anticipate that the level of effort to modify our hazardous waste rules (NR 600 series) would 

entail considerably more workload than that needed to modify our solid waste rules (NR 500 

series). 

We anticipate that staff training and plan review workload with a RCRA Subtitle D alternative 

can be readily integrated into our existing staffing and management. Existing staff would need 

considerably more training to implement the procedural elements and specific details of the 

RCRA Subtitle C proposed rules. The WDNR Waste & Materials Management program has an 

experienced set of 18 engineers and hydrogeologists, as well as several plan review experts and 

supervisors, to regulate 70 existing active landfills, including 11 CCR landfills. We do not have 

enough hazardous waste engineers and hydrogeologists to take on the CCR landfill work, so we 

would expect that solid waste staff would have to continue to be involved in such activities. 
463

WDNR staff have the technical capabilities and experience to effectively regulate CCR landfill 

under State rules. The technical requirements of either the RCRA Subtitle C or Subtitle D 

approaches are well within their capability. However, the additional procedural requirements in 

the RCRA Subtitle C rule alternative would consume additional time and resources that are 

currently already stretched. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06416-80

Organization1:Wisconsin Department of Natural Resources (WI DNR) and Public Service 

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA could mitigate difficulties imposed by the proposed rules by seeking and obtaining 

authority to use an authorization process such as was used for the Part 258 MSW landfill rules, 

or to develop rules that utilize a coordinated approval process. Either approach would be able to 

take advantage of resources that exist at the State agencies, including experienced staff, 

knowledge of the existing utility CCR disposal facilities and CCR generating facilities, an 

established review and permitting process, experience with facility design, familiarity with 

earthwork construction and materials commonly used in landfills, unique or modern construction 

materials such as geosynthetic clay liners, and local geology and hydrogeology. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
464

Comment Number: EPA-HQ-RCRA-2009-0640-06416-94

Organization1:Wisconsin Department of Natural Resources (WI DNR) and Public Service 

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.4.5 7.3.1

Comment Excerpt Text:

Potential Impacts to Wisconsin’s Beneficial Use Program - Obviously, the potential impacts to 

the beneficial use program will vary considerably depending on the final federal rule adopted. 

From a programmatic perspective, regulating CCR under RCRA Subtitle C would mean an 

extensive rewrite of both our ch NR 500 solid waste management series and our ch. NR 600 

hazardous waste management series of codes. This would involve a multi-year effort resulting in 

significant expenditure of staff time and resources in an era of severe State budget shortfalls and 

staffing limitations. Regulation of CCR under a Subtitle D would involve much less restructuring 

of administrative codes since regulation would still defer to State statutes and the ch. NR 600 

series of codes would not have to be modified. Revisions would likely be limited to some new 

restrictions on use and testing in s. NR 538 Wis. Adm. Code and some changes to WDNR’s 

landfill construction standards in s. NR 504, Wis. Adm. Code. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

The commenter is also referred to Unit IV of the preamble for a discussion on our decision to 

regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a 

complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06446-14

Organization1:Hoosier Energy Rural Electric Cooperative (REC), Inc.

Commenter1: Michalene Reilly

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

E. Subtitle D Requirements has more than a Sufficient Safety Factor for CCRs
465

The Subtitle D requirements specified in the rule are the same as for municipal solid waste. It is 

difficult to fathom that EPA would consider the hazards of CCRs to be anything comparable to 

municipal waste. Homeowners are allowed (though discouraged) from throwing anything they 

wish to discard into the waste that goes to these landfills. That list includes listed and 

characteristic hazardous wastes of all kinds including pesticides, mercury thermometers, 

pharmaceuticals, and household chemicals. It also is impossible to prevent liquids from being 

disposed of into the municipal landfill. Yet, EPA contends that these disposal units are safely 

regulated. 

In the case of a CCR facility, the wastes are homogeneous, state inspectors in Indiana visit our 

landfill regularly, and permit provisions require facilities to operate in a safe manner

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06446-15

Organization1:Hoosier Energy Rural Electric Cooperative (REC), Inc.

Commenter1: Michalene Reilly

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 8.4

Comment Excerpt Text:

F. State Enforcement of CCR Regulations

Hoosier Energy is located in the State of Indiana which currently has a very vibrant and effective 

program for managing CCRs. Landfill design is based the risks posed by the level of constituents 

in the ash. In fact, a Type I facility has the same requirements as a municipal solid waste landfill. 

Landfill operators are required to certified and then receive annual training. Regular inspections 

include additional solid waste personnel (such as the permit manager, a representative from 

IDEMs engineering or geology section) during times of permitting or if there is an issue with the 

facility. Hoosier Energy supports state regulation of facilities by the individual states. If a state 

refuses to regulate, EPA can step in. However, adequate programs that are doing the job should 

not be usurped by federal regulation. It should be noted that much of the evidence submitted 

against state regulation sites damage cases. Many of those cases come from facilities that were in 

place long before RCRA was even a law. In Indiana, many facilities were in place before the 

Department of Environmental Management was created. To say that RCRA standards are 

required based on the standards of what was done in the 1980’s vs. how State’s have regulated 

CCRs in the last 5 years, appears to be arbitrary and lacking any kind of logic
466

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06723-19

Organization1:West Virginia Department of Environmental Protection (WVDEP)

Commenter1: Gary Casto on behalf of Randy C. Huffman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.2.4

Comment Excerpt Text:

Since the 1970's impoundments have been regulated by the West Virginia Dam Safety Act which 

WVDEP administers. The design of each of the seven disposal surface impoundments referenced 

above was reviewed for structural stability and subsequently approved prior to their construction. 

WVDEP annually inspects each of the seven impoundments for structural stability. Please note 

that Subtitle D lacks a mechanism for the states to administer the proposed regulations. State 

regulatory programs that meet or exceed the proposed Subtitle D standards should be allowed to 

administer the Subtitle D rules through state permit issuance.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of 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-2009-0640-06808-14

Organization1:New Mexico Environment Department (NMED) and Energy, Minerals and 

Natural Resources Department (EMNRD)

Commenter1: Bill Brancard

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:
467

Furthermore, because CCRs are currently exempt from Subtitle D regulation in New Mexico, 

there is currently very limited potential for use of existing in-state Subtitle D landfill capacity to 

accept these wastes. Much of the CCRs covered by the proposed rule will likely meet the 

definition of “ash” under New Mexico’s solid waste rules, 20.9.2 NMAC. Three landfills are 

permitted to accept “ash” from industrial or other non-power generating sources as a Subtitle D 

Special Waste. Two of the three landfills currently accept small quantities of “ash.” The third 

currently does not accept “ash.” Two of the three permitted landfills are small landfills located in 

rural areas. The large landfill that accepts “ash” is located in Rio Rancho, New Mexico, which is 

approximately 176 miles from the concentration of power-generating plants near the Four 

Corners area of the state. Additionally, this facility is nearing capacity and the end of its permit 

life.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06808-15

Organization1:New Mexico Environment Department (NMED) and Energy, Minerals and 

Natural Resources Department (EMNRD)

Commenter1: Bill Brancard

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1

Comment Excerpt Text:

Under either Subtitle C or Subtitle D, New Mexico would have to amend either the New Mexico 

Solid Waste Act or the Hazardous Waste Act and the implementing regulations. As a result, 

there is no significant time or resource advantage to either regulatory path. Under either option, 

facilities would continue to operate under an existing ground water discharge permit until the 

solid or hazardous waste statutes and regulations could be changed. Under the RCRA Subtitle C 

option, facilities would become subject to RCRA interim status once New Mexico adopted 

appropriate rules, and would remain so until a RCRA permit was issued. While under interim 

status, facilities would be required to retrofit surface impoundments to meet any new liner, 

leachate collection, and groundwater monitoring requirements. Because of limited capacity in 

current Subtitle D landfills in New Mexico, permit modification processes and siting and 

permitting new landfill facilities still would be necessary to meet the expected increased demand 

under the Subtitle D option. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
468

Comment Number: EPA-HQ-RCRA-2009-0640-06815-3

Organization1:Michigan Department of Natural Resources and Environment (DNRE)

Commenter1: Liane J. Shekter Smith

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Additionally, any new regulations under Subtitle D should allow for a determination of existing 

state program adequacy similar to what is already provided for under the current Subtitle D 

program for municipal solid waste or sufficient time to amend state regulations so that a 

determination of state program adequacy can be obtained in order to implement any additional 

requirements as stated in the proposed rule. Enclosed please find our comments on specific 

questions raised in the proposed rule. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06815-30

Organization1:Michigan Department of Natural Resources and Environment (DNRE)

Commenter1: Liane J. Shekter Smith

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Michigan has an effective CCR regulatory program. The siting, construction, monitoring, 

operational, and corrective action requirements have been shown to be adequate to protect 

human health and the environment. Many CCR disposal sites in Michigan began accepting waste 

prior to the effective date of state rules. Once the groundwater monitoring and corrective action 

requirements took effect, and the existing sites were evaluated, it was determined that many of 

the existing un-lined sites had caused groundwater contamination. Eight former and existing 

disposal sites have been subject to corrective action. Of these, six have been closed and capped 

and two remain active and have cleanup plans in place. 

There are currently nine active disposal sites in Michigan that accept 88 percent of CCR 
469

generated in the state. Combined, these disposal sites have approximately 62,000,000 cubic yards 

of remaining permitted disposal capacity, or about 27 years of disposal capacity at current 

generation rates. Of these disposal sites, only one, with approximately 2,000,000 cubic yards of 

permitted capacity, would meet the proposed composite liner design requirement. All of the 

remaining sites would be forced to close in the five to seven year window provided in the 

proposed rule. Since it is unlikely that all the associated public utilities would cease operation or 

convert to other fuel stocks in the interim, this disposal capacity would need to be replaced. In 

the event that the Subtitle D option is implemented as written, the existing facilities would have 

to be replaced with newly permitted composite-lined landfills. 

The permitting process in Michigan includes several elements. Under current solid waste 

regulation, any proposed new landfill must demonstrate compliance with the Solid Waste 

Management Plan of the county in which the disposal area will be located. Of the eight landfills 

that would be required to close, seven are located in counties that provide for the siting of new 

landfills within the county. The remaining county would allow the siting of a landfill, provided 

the community it is to be located in is willing to enter a Host Community Agreement. County 

Solid Waste Management Plans may be altered, but this process generally takes a minimum of 

one to two years. There is no statutory limit on the time frame that may be taken to amend a 

county plan or to obtain a determination of consistency with the county plan, so the process may 

take more than the one to two year period. Once it has been determined that a landfill is 

consistent with the County Solid Waste Management Plan, the owner/operator of a proposed 

landfill may apply for a construction permit upon completion of a hydrogeological investigation 

of the proposed site and the preparation of other necessary permit application documents. Once 

an administratively complete permit application is received, the DNRE must make a decision on 

the permit within 120 days. Given the uncertainties associated with the county-planning· process, 

site investigatory work, and permit review, it is difficult to determine if adequate replacement 

disposal capacity for CCR could be available within the timeframes provided. 

Michigan has approximately 430,000,000 cubic yards of existing permitted capacity available at 

49 Subtitle D landfills located throughout the state. In-state disposal of Michigan generated solid 

waste is prohibited in a county other than the county of generation unless it is reciprocally 

authorized per both the importing and exporting county Solid Waste Management Plans. These 

restrictions may limit access to existing permitted capacity in portions of the state. 

It is likely that, should the Subtitle D proposal be implemented, Michigan should have adequate 

disposal capacity available in the short term, and public utilities should have the ability to 

develop additional landfill capacity in the long-term, although at additional expense over their 

current operations. 

The DNRE has recently had to reduce staffing in the Subtitle D program due to funding 

constraints. It is likely that given these reductions, the need to complete consistency reviews, 

provide for public participation and technical reviews of an addition eight landfill construction 

permits would strain our existing resources and compromise our ability to run our program 

effectively.
470

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06816-5

Organization1:Phoenix Cement Company (PCC), Salt River and Rock, Salt River Materials 

Group

Commenter1: Roger R. Smith

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 11.2.5 7.1 7.3.1 9.2.2.2 4.5 3.1.2

Comment Excerpt Text:

PCC opposes any additional regulation of CCR. Arizona already has the appropriate regulatory 

framework in place to protect human health and the environment from CCR management units. 

The adoption of a new federal regulatory program would overlap with Arizona’s existing 

regulatory program, would not provide any additional protection to human health and the 

environment, but would simply require Arizona to expend already strained resources to amend 

its proven regulatory program to conform to an unproven federal regulatory program. 

Additionally, it would undermine our company and eliminate jobs in these already difficult 

economic times. If EPA insists on further regulating CCR, it should be under a Subtitle D solid 

waste approach which will work in conjunction with existing state programs, not under Subtitle 

C as a hazardous material.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06844-5

Organization1:Intermountain Power Agency (IPA)

Commenter1: James A. Hewlett

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Subtitle D proposal would give the EPA authority to set performance standards with a 

narrower scope that would be protective of the environment. The proposal should provide that 

States having comparable Subtitle D programs in place (e.g., the State of Utah) and, where 
471

sitespecific conditions warrant, take precedence over federal regulations including landfill 

permitting and groundwater monitoring and protection. Other State programs should similarly 

have precedence including State financial assurance programs and State self reporting 

requirements in lieu of company web based documentation. Subtitle D provisions would overlay 

State programs where such programs were not compliant. IPA believes this option provides for 

the safe management and disposal of CCR without imposing potentially prohibitive costs on IPA 

and the contemporaneous rate burden on our purchasers and the reduction in recycling 

opportunities of coal combustion by-products if the materials are regulated under RCRA Subtitle 

C. 

IPA believes that regulating the CCR under Subtitle D will meet the intent and spirit of the 

federal RCRA statute of resource conservation through reduction, reuse, and recycling of 

materials.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

The commenter is also referred to Unit IV of the preamble for a discussion on our decision to 

regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a 

complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06846-6

Organization1:Florida Department of Environmental Protection (FDEP)

Commenter1: Richard B. Tedder on behalf Mary Jean Yon

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3 7.1

Comment Excerpt Text:

The Department believes, with its existing state laws, it is appropriately regulating the disposal 

of CCRs as solid wastes in Florida. In addition the Department intends to develop a new rule to 

update and consolidate our requirements for managing industrial wastes including CCRs. 

However, the Department has no fundamental objection to EPA regulating the disposal of CCRs 

as solid wastes under RCRA subtitle D (in particular the D prime approach) provided sufficient 

flexibility is built into those regulations to recognize Florida's unique situation.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 
472

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

The commenter is also referred to Unit IV of the preamble for a discussion on our decision to 

regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a 

complete discussion of the beneficial use aspects of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06863-10

Organization1:Avista Corp.

Commenter1: Darrell Soyars

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.2

Comment Excerpt Text:

Avista believes that any final Subtitle D regulatory program for CCRs must include a mechanism 

for the administration and implementation of the rules by the states. As EPA itself has 

concluded, many states already have well-established and protective 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 IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06865-21

Organization1:Constellation Energy

Commenter1: Charlene Zaruba on behalf of Paul Allen

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The liner systems for base liner systems and closures should be allowed to match the municipal 
473

landfill regulations of individual states. There has been over 17 years of experience and research 

on the appropriate liner systems under Subtitle D for individual states that can accommodate the 

variations in groundwater depth, the availability of clay, and the amount of precipitation per year 

(arid climates) that has been backed up with monitoring data that shows proper performance.

Liner systems and covers for CCR can be matched to the requirements of municipal landfills in 

individual states as there is less risk associated with the non-biodegradable nature of CCRs and 

minimal potential for landfill gas

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-07533-1

Organization1:Nebraska Department of Environmental Quality (NDEQ)

Commenter1: David B. Haldeman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1

Comment Excerpt Text:

The proposed regulations have the potential to significantly impact NDEQ's existing CCR 

permitting and management program depending on the regulatory approach EPA pursues in its 

final rule.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-07533-24

Organization1:Nebraska Department of Environmental Quality (NDEQ)

Commenter1: David B. Haldeman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
474

Comment Excerpt Text:

Nebraska’s regulations for CCR management are contained in Title 132 – Nebraska Integrated 

Solid Waste Management Regulations. Nebraska has been implementing these regulations for 

nearly 17 years. New federal rules for management of CCR under Subtitle D would probably 

require some rule making changes to Title 132 involving some extra expenditure of resources, 

but could probably be absorbed by the existing program. Adopting flexibility in the federal rules 

under a Subtitle D approach similar to the flexibility provided for in the federal MSWLF rules 

under 40CFR Part 258 would help to mitigate these problems.

Nebraska utilizes Title 118 – Ground Water Quality Standards and Use Classification to address 

corrective action at landfills, and for all other point source pollution occurrences. Appended to 

Title 118 is Appendix A, Ground Water Remediation Protocol. This appendix prescribes an 

eleven step process that NDEQ follows to investigate a site and make corrective action decisions. 

When NDEQ went through the program approval process for its municipal solid waste landfill 

permit program under Subtitle D, Title 118 was found to be equivalent to the corrective action 

process laid out under 40CFR Part 258 for municipal solid waste landfills even though the 

regulations were not the same. If EPA adopts a prescriptive approach in performing corrective 

action without any allowance for flexibility, adopting the program would create procedural 

difficulties. Adopting flexibility for states that have permit programs for CCR landfills or other 

regulatory structure to address corrective action at CCR landfills would help mitigate the 

procedural difficulties.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-07533-39

Organization1:Nebraska Department of Environmental Quality (NDEQ)

Commenter1: David B. Haldeman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.7.1

Comment Excerpt Text:

NDEQ’s corrective action requirements are contained in Title 118 Ground Water Standards and 

Use Classification and do not mirror the requirements found in 40CFR Part 258 or those in 

EPA’s proposed rule. However, during the program approval process of NDEQ’s municipal solid 

waste landfill permit program EPA determined that NDEQ’s corrective action requirements 

contained in Title 118 were equivalent to 40CFR Part 258, and NDEQ’s municipal solid waste 

landfill permit program was subsequently approved. NDEQ encourages EPA to allow flexibility 
475

to states with different regulatory approaches for ground water protection and corrective action 

to utilize their existing regulatory structure. To establish different standards for municipal solid 

waste landfills and CCR landfills would create inconsistency in policy and would be a burden on 

state programs (to have to create and implement a separate set of standards.)

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

The commenter is also referred to Unit IV of the preamble for a discussion on our decision to 

regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a 

complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-07786-7

Organization1:Nevada Department of Conservation and Natural Resources, Nevada Division 

of Environmerital Protection (NDEP)

Commenter1: Collen Cripps

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1 4.5

Comment Excerpt Text:

While we strongly oppose the regulation of CCR as hazardous waste under RCRA Subtitle C or 

as nonhazardous waste under RCRA Subtitle D, if EPA decides to change the Subtitle listing of 

CCR, Nevada respectfully requests that the procedures for authorizing Nevada's program to 

implement any new and additional CCR rules be streamlined and designed to operate in harmony 

with the existing Subtitle D program authorization procedures. Deference should be given to 

Nevada's program in the authorization process as it is consistent with, and no less stringent than, 

the federal regulations. Moreover, any new CCR rules and regulations should be treated as an 

amendment to Nevada's existing Subtitle D program authorization rather than imposing new 

CCR rules and regulation as separate and distinct from Nevada's authorization.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
476

The commenter is also referred to Unit IV of the preamble for a discussion on our decision to 

regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a 

complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-07793-6

Organization1:South Dakota Department of Environmental and Natural Resources

Commenter1: Vonni Kallemeyn

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

It will take some additional time and resources to regulate CCR as a solid waste as well under 

Subtitle D, however it will be much less of a financial/employee impact. The solid waste 

program is a permit driven program versus our hazardous waste program is an inspection and 

enforcement driven program in this state.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-08218-10

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.3.1 4.2.2 4.5

Comment Excerpt Text:

For these reasons, Maryland suggests a system like that used for municipal solid wastes under 40 

CFR 258, where States must integrate the federal standards into the State program and seek 

program approval from EPA under 40 CFR 239. This eliminates duplicative requirements and 

allows States to provide detailed technical review by hydrogeologists and engineers of their solid 

and industrial waste permitting units to 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. 
477

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-08218-23

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.2 4.2.3.1 4.5

Comment Excerpt Text:

Maryland suggests a system like that used for municipal solid wastes under 40 CFR 258, where 

States must integrate the federal standards into the State program and seek program 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 industrial 

waste permitting units to proposed CCR disposal facilities, to insure that these units are safely 

designed and operated. This is much more desirable than relying on third-party certifications by 

consultants, as would be the case under the proposed RCRA D option, whom may not be as fully 

cognizant of the geotechnical conditions that exist in any given area, or be as familiar with the 

historical operating conditions at a particular site.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-08218-24

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.2 3.5.2.2
478

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. 

Comment Number: EPA-HQ-RCRA-2009-0640-08218-26

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.7.2 4.4.7.4

Comment Excerpt Text:

Also, EPA’s choice not to allow the States to evaluate and approve enhancements to important 

elements such as the liner design and groundwater monitoring system, as is the case under the 40 

CFR 258 regulations, makes this a risky proposal. The inability of the States to specify more 

stringent monitoring requirements under the federal rule, such as more monitoring wells than just 

one upgradient and three down, has two negative effects: First, it weakens state enforcement 

under its own rules because it provides the defense that “the federal rule doesn’t require more 

than 4 monitoring wells, so why is the State doing so?” and secondly, requires states to have 

duplicative rules to provide them with that authority, making it difficult for operators, who won’t 

have just one set of applicable rules to follow. We understand that EPA does not wish to allow 

states to reduce monitoring parameters. However, we believe that EPA could change the rule to 

allow groundwater monitoring plans approved by the States as long as they are at least as 

stringent as required under the proposed rule. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-08218-49

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:
479

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.2 4.2.3.1 3.1.2 4.5

Comment Excerpt Text:

For the many reasons expressed herein, MDE does not favor regulation under RCRA C, or 40 

CFR 257 as proposed. The Department recommends a system like that used for municipal solid 

wastes under 40 CFR 258, where States must integrate the federal standards into their program 

and seek program approval from EPA under 40 CFR 239. This would eliminate 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 review by hydrogeologists and engineers from the 

solid and industrial waste permitting units to proposed CCR disposal facilities, to ensure that 

these units are safely designed and operated. This is much more desirable than relying on thirdparty certifications by consultants whom may not as fully cognizant of the geotechnical 

conditions that exist in any given area, or be as familiar with the historical operating conditions 

at a particular site, as State government scientists whom work in the area full-time. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08218-78

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

the CFR257 option would be very disruptive and less protective than the current State 

regulations. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08218-8

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.2.2

Comment Excerpt Text:

EPA’s proposal to regulate the CCRs under 40 CFR 257, the Open Dump regulations, raises 

concerns about implementation and regulation. First, this proposal does not allow the States to 

evaluate and approve enhancements to important technical elements such as the liner design and 
480

groundwater monitoring system, as is the case under the 40 CFR 258 regulations. The inability 

of the States to specify more stringent monitoring requirements under the federal rule, such as 

additional monitoring wells beyond 4 wells, weakens state ability to enforce additional 

requirements when technically justified and requires states to put duplicative rules in place 

making compliance for operators more difficult. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

_____________________________________________________________________

Comment Number: EPA-HQ-RCRA-2009-0640-08218-9

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.6

Comment Excerpt Text:

The use of self-implementing rules raises compliance concerns and will lead to a dual regulatory 

system in those states, including Maryland, that have implemented more comprehensive 

requirements. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-08266-5

Organization1:West Associates

Commenter1: A. Gwen Ekund on behalf of Starla Lacy

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
481

Comment Excerpt Text:

A suggestion for improvement of the Subtitle D “Prime” option would be the ability for qualified 

state programs to directly administer the federal Subtitle D regulations for CCR when the state 

program meets or exceeds the federal controls. This action would minimize duplication of effort 

by state and federal agencies and allow qualified state programs to administer the rules instead of 

the self-implementing approach contained in EPA’s proposal. The states, in turn, can develop 

their own permitting programs for these CCR disposal units including CCR landfills and CCR 

surface impoundments. Further, if certain CCR surface impoundments cannot operate in an 

environmentally sound manner, then closure can be conducted under a State approved program 

within a reasonable timeframe determined specific to the individual project. Many western 

utilities manage CCR as dry ash and the geology in the western US provides a measure of 

protection, depending on the area, with natural bedrock geology. WEST has appended a letter 

sent from Western Governors’ Association on March 5, 2010 to the Honorable Lisa Jackson, 

Administrator of U.S. EPA, which is consistent with WEST recommendations regarding CCR in 

the western U.S.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-08787-29

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1: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:

Responses to a State survey begin to quantify the amount of funding that would be needed for 

each proposal. Contrasting the estimated resource needs for Subtitle C versus Subtitle D 

programs also illustrates that the latter is a better use of resources. 

Based on responses from 35 States, it is estimated that over 150 additional FTEs would be 

needed just for permitting. If the annual cost of one FTE for salary, fringe benefits, and overhead 

is approximately $100,000, the additional personnel costs for Subtitle C permitting for 35 States 

alone could exceed $15 million. Additional expenditures would be needed for personnel 

inspecting the facilities and enforcing the permits. 
482

There were 22 States that were able to estimate the number of FTEs for the Subtitle C option 

versus the Subtitle D option. The 22 States estimated that an additional 116 FTEs would be 

needed to process original RCRA C permit(s) (operating and/or closure -- post-closure) 

compared to an additional 62 FTEs that would be needed to permit Subtitle D facilities. Based on 

these estimates, the Subtitle C option could cost twice as much as the Subtitle D option, $12 

million versus $6 million respectively. 

Funding for training would be needed, particularly for staff processing original installation 

permits for new RCRA C hazardous waste facilities. Only a few States have issued an original 

installation permit since 1990. Of the 38 staff that States identified as having experience 

processing original Subtitle C installation permits, 23 are eligible to retire in 5 years. The point is 

that training costs would have to be factored into STAG funding needs.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08787-31

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Stephen A. Cobb (Al)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.4

Comment Excerpt Text:

The EPA proposal identifies the adequacy of State programs as a central issue in selection of an 

option. A common theme throughout the proposal is that the lack of "federal 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 Waste Disposal Facilities and Practices has established the minimum 

national performance standards necessary to ensure that "no reasonable probability of adverse 

effects on health or the environment" would result from solid waste disposal facilities or 

practices. States either already had existing State requirements or voluntarily adopted rules that 

meet or exceed the Subtitle D national performance standards. When State regulators were 

recently asked whether existing State standards/regulations for non-MSW facilities are mostly 

compatible with or more stringent than the existing Part 257 minimum standards, 47 out of 47 

States responded "yes". 

Response: The Agency acknowledges and appreciates the comment. 
483

Comment Number: EPA-HQ-RCRA-2009-0640-08787-32

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Stephen A. Cobb (Al)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.1

Comment Excerpt Text:

EPA's proposal raises concerns regarding the reliance of RCRA Subtitle D on citizen suit 

enforcement authority given that States are not required to adopt the federal minimum standards 

into State regulations. EPA's concerns should consider that a number of State programs already 

have enforceable State requirements that meet or exceed many of the proposed CCR federal 

minimum standards. Also, the history of 40 CFR part 257 demonstrates that many States would 

voluntarily establish compatible State regulations. Specific to a citizen suit under the CCR 

proposal, the proposed RCRA Subtitle D requirements are clear and unambiguous. The 

requirements that owners or operators of CCR disposal facilities maintain independently 

reviewed documentation of compliance on 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 do not require the owner 

or operator to document compliance, the proposed RCRA Subtitle D rules are actually useful 

towards developing a citizen suit. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-08787-35

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Stephen A. Cobb (Al)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
484

Comment Excerpt Text:

Based upon the history of implementation of the solid waste program, upon adoption under 

Subtitle D, national CCR standards would be established quickly and nationwide, allowing States 

to continue enforcement under their State regulations with the ability to file citizen suits where 

State enforcement authority is limited. EPA should work directly with those States with limited 

State enforcement to support those States' voluntary enactment of authority and adoption of 

compatible enforceable State requirements. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-08787-37

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Stephen A. Cobb (Al)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

1. As currently proposed, an owner or operator of a CCR disposal facility would need to fully 

comply with both the self-implementing national minimum CCR disposal standards and existing 

State requirements. This appears to be true even if the State requirements meet or exceed the 

self-implementing national minimum CCR disposal standards. In such a circumstance, EPA 

should establish some process to address conflicts between the federal minimum standard and a 

more protective or regionally appropriate State standard. 

2. Many States wonder if EPA would establish a mechanism by which EPA acknowledges a 

demonstration that a State permit program meets or exceeds the federal minimum CCR 

standards. Such mechanism should accommodate regionally appropriate State standards. 

3. EPA should clarify that the proposed CCR regulations do not apply to any State permitted 

MSW landfill that has previously accepted or may accept CCR. While most CCR are currently 

disposed at electric utility owned CCR disposal sites, there is no prohibition against CCR being 

disposed in State permitted MSW landfills. A reading of the current CCR regulations under the 

Subtitle D approach would require that a State permitted MSW landfill that has previously 

disposed or may dispose of any quantity of CCR would be fully subject to duplicative 

requirements with the additional burden of posting documentation on a website, having an 
485

independent professional review certification, etc. EPA should facilitate this disposal option by 

clarifying that the proposed CCR regulations are not applicable to any State permitted MSW 

landfills. The suggested clarification would also help with use of State permitted MSW landfills 

as interim CCR disposal capacity as utilities seek to close, upgrade, or develop their own 

compliant CCR disposal sites. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: EPA-HQ-RCRA-2009-0640-08854-1

Organization1:Environmental Council of the States (ECOS)

Commenter1: R. Steven Brown

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1 4.1.1

Comment Excerpt Text:

ECOS is the non-profit, non-partisan association of state and territorial environmental 

commissioners. The association's position on the regulation of CCR is articulated in Resolution 

08-14, adopted on September 22, 2008 and revised on March 23, 2010, entitled, "The Regulation 

of Coal Combustion Products" (see Appendix 1). 

In the resolution, ECOS calls upon the U.S. Environmental Protection Agency (EPA) to 

conclude that additional federal CCR regulations would be duplicative of most state programs, 

are unnecessary, and should not be adopted, but if adopted must be developed under Subtitle D 

rather than Subtitle C of the Resource Conservation and Recovery Act (RCRA). 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-08854-6

Organization1:Environmental Council of the States (ECOS)

Commenter1: R. Steven Brown

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1 4.1.1 7.1

Comment Excerpt Text:
486

Resolution Number 08-14 Approved September 22, 2008 Branson, Missouri 

Revised March 23, 2010 Sausalito, California 

As certified by R. Steven Brown Executive Director 

THE REGULATION OF COAL COMBUSTION PRODUCTS 

WHEREAS, The 1980 Bevill Amendment to the Resource Conservation and Recovery Act 

(RCRA) requires the U.S. Environmental Protection Agency (U.S. EPA) to "conduct a detailed 

and comprehensive study and submit a report" to U.S. Congress on the "adverse effects on 

human health and the environment, if any, of the disposal and utilization" of fly ash, bottom ash, 

slag, flue gas emission control wastes, and other byproducts from the combustion of coal and 

other fossil fuels and "to consider actions of state and other federal agencies with a view to 

avoiding duplication of effort;" and 

WHEREAS, U.S. EPA conducted the comprehensive study required by the Bevill Amendment 

and reported its findings to U.S. Congress on March 8, 1988 and on March 31, 1999, and in both 

Reports that recommended that coal combustion wastes (CCW) not be regulated as hazardous 

waste under RCRA Subtitle C; and 

WHEREAS, on August 9, 1993, U.S. EPA published a regulatory determination that regulation 

of the four large volume coal combustion wastes (fly ash, bottom ash, boiler slag, and flue gas 

emission control waste) as hazardous waste under RCRA Subtitle C is "unwarranted;" and 

WHEREAS, on May 22, 2000, U.S. EPA published a final regulatory determination that fossil 

fuel combustion wastes, including coal combustion wastes, "do not warrant regulation [as 

hazardous waste] under Subtitle C of RCRA," and that "the regulatory infrastructure is generally 

in place at the state level to ensure adequate management of these wastes;" and 

WHEREAS, U.S. EPA is under no statutory obligation to promulgate federal regulations 

applicable to CCW disposal following the regulatory determination that hazardous waste 

regulation of CCW disposal is not warranted, and throughout the entire Bevill regulatory 

process, CCW disposal has remained a state regulatory responsibility and the states have 

developed and implemented robust regulatory programs tailored to the wide-ranging 

circumstances of CCW management throughout the country; and 

WHEREAS, in 2005, U.S. EPA and the U.S. Department of Energy published a study of CCW 

disposal facilities constructed or expanded since 1994 and evolving state regulatory programs 

that found: state CCW regulatory requirements have become more stringent in recent years, the 

vast majority of new and expanded CCW disposal facilities have state-of-the-art environmental 

controls, and deviations from state regulatory requirements were being granted only on the basis 

of sound technical criteria; and 

WHEREAS, the states have demonstrated a continuing commitment to ensure proper 

management of CCWs and several states have announced proposals for revising and upgrading 

their state CCW regulatory programs. 
487

NOW, THEREFORE BE IT RESOLVED THAT THE ENVIRONMENTAL COUNCIL OF 

THE STATES: 

Agrees with U.S. EPA's repeated assessments in 1988, 1993, 1999, 2000, and 2005 that CCW 

disposal does not warrant regulation as hazardous wastes under RCRA Subtitle C; 

Agrees with U.S. EPA's finding in the 2005 study previously cited that "the regulatory 

infrastructure is generally in place at the state level to ensure adequate management of these 

wastes" and believes that states should continue to be the principal regulatory authority for 

regulating CCW as they are best suited to develop and implement CCW regulatory programs 

tailored to specific climate and geological conditions designed to protect human health and the 

environment; 

Supports safe, beneficial reuse of CCW, including for geotechnical and civil engineering 

purposes; 

Believes that the adoption and implementation of a federal CCW regulatory program would 

create an additional level of oversight that is not warranted, duplicate existing state regulatory 

programs, and require additional resources to revise or amend existing state programs to conform 

to new federal regulatory programs and to seek U.S. EPA program approval; 

Believes that if U.S. EPA promulgates a federal regulatory program for state CCW waste 

management programs, the regulations must be developed under RCRA Subtitle D rather than 

RCRA Subtitle C; 

Believes that designating CCW a hazardous waste under RCRA Subtitle C could create stigma 

and liability concerns that could impact the beneficial use of CCW; and 

Therefore calls upon U.S. EPA to conclude that additional federal CCW regulations would be 

duplicative of most state programs, are unnecessary, and should not be adopted, but if adopted 

must be developed under RCRA Subtitle D rather than RCRA Subtitle C, and in addition, urges 

U.S. EPA to make a timely decision, and calls upon U.S. EPA to begin a collaborative dialogue 

with 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. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

The commenter is also referred to Unit IV of the preamble for a discussion on our decision to 

regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a 
488

complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-09237-8

Organization1:Ohio Coal Association

Commenter1: Michael T.W. Carey

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.2.1 9.3.2 4.1.2

Comment Excerpt Text:

Regulation of CCR under Subtitle D of RCRA is also Unsuitable. 

EPA has also proposed CCR be regulated as a solid waste under Subtitle D of RCRA. This 

option, while less egregious than regulation under Subtitle C, is still unsuitable and intrudes on 

the flexibility of the states to continue to manage CCR under state law structures. With respect to 

costs, as EPA itself acknowledges, the costs of regulatory compliance under Subtitle D run well 

into the billions of dollars. 75 Fed. Reg. 35128, 35216-35218. EPA attempts to mitigate the costs 

of compliance by arguing that the benefits of increased regulation include the reduced costs 

associated with the clean-up of a catastrophic failure of a CCR impoundment. However, EPA 

itself acknowledges that it has received comments contesting the estimates used by the Agency 

to calculate this particular "regulatory benefit." 75 Fed. Reg. 35147-35148. Ohio Coal also 

contends that the Agency has underestimated the costs of these regulations because these cost 

figures fail to take into account the cost that state environmental protection agencies will incur in 

monitoring and administering a new RCRA regulatory program. Additionally, EPA proposes to 

restrict state flexibility by imposing one-size fits all requirements. For instance, EPA's proposed 

rules will require particular groundwater monitoring standards and prohibit states from 

establishing alternatives, as is commonly allowed with Subtitle D disposal facilities. 75 Fed. 

Reg. 35128, 35205. Regulation of CCR under Subtitle D also packs the double-punch of reduced 

state flexibility along with increased costs of compliance as well as regulatory oversight. Thus, 

EPA proposes to increase costs while failing to demonstrate the factual and scientific benefits 

resulting from proposed regulation under Subtitle D of RCRA.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-09273-4

Organization1:Iowa Department of Natural Resources (IDNR)

Commenter1: Wayne Gieselman

Commenter Type: State Government
489

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Agency put forth two divergent approaches, which has substantially complicated this 

rulemaking process, as well as making it extremely difficult to provide detailed comments on 

these differing approaches. Due to the level of revision we see as necessary to make either 

approach practicable, and the likelihood that it will take several years before any federal 

regulation would become effective, the IDNR has decided to resume its prior rulemaking effort 

to put forth an appropriate Subtitle D regulation for CCR. The IDNR respectfully requests EPA 

implement clear federal standards under Subtitle D that all states could implement that would not 

duplicate existing state controls, as this would be a far more effective and appropriate policy for 

the management of CCR. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-09284-19

Organization1:Virginia Department of Environmental Quality

Commenter1: Jeffery A. Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Subtitle D proposal, while infinitely more reasonable then the Subtitle C proposal, is not 

without concern. The main concern is the lack of flexibility and the budget impacts to implement 

this program if this Subtitle D option is pursued. The proposed regulations do not provide states 

with enough flexibility regarding CCR management or disposal options. Additionally, states 

seeking approval of their CCR program will have to consider the impacts to their budgets due to 

the regulatory and permitting burden that will ensue. These budgetary impacts, while 

considerably less than those under the Subtitle C option, are still significant especially during 

this time of shrinking state funds and, therefore, cannot be ignored. These costs must be 

considered and Virginia DEQ recommends that EPA more fully evaluate these impacts and 

consider the work done by EPA and ECOS on the cost of rules implementation.
490

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-09284-2

Organization1:Virginia Department of Environmental Quality

Commenter1: Jeffery A. Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1

Comment Excerpt Text:

As proposed, these regulations will significantly impact the Commonwealth of Virginia in many 

ways regardless of whether EPA decides to regulate CCR disposal under either Subtitle C or 

Subtitle D. Therefore, if this regulatory action is pursued, Virginia DEQ recommends that 

changes to both of the proposed options are necessary to avoid unintended adverse impacts to 

our state's regulatory programs, private businesses, and human health and the environment.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-09284-56

Organization1:Virginia Department of Environmental Quality

Commenter1: Jeffery A. Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.6.1.4 4.6.1.5

Comment Excerpt Text:

Five years is the minimum amount of time for Virginia DEQ to implement the rulemaking 

process to amend our regulations, receive permit applications, review permit applications for 

new CCR landfills that meet the standards of the Subtitle D proposal, and issue permits for these 
491

landfills. EPA would have to commit staff to approve the CCR permit program, however, if the 

MSW program is to be utilized as a model. Approvals of state permit programs would need to be 

completed within 18 months after the effective date of the rule so that adequate time can be 

allowed for the permit application process.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-09284-61

Organization1:Virginia Department of Environmental Quality

Commenter1: Jeffery A. Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Subtitle D option: Under the Subtitle D proposal, the minimum federal criteria would take effect 

within 180 days after promulgation of the final rule. Virginia DEQ would likely need to 

undertake a rulemaking to revise our regulations for CCR landfill requirements and surface 

impoundments to be consistent with EPA's promulgated regulatory requirements. While EPA's 

minimum Subtitle D standards include many selfregulating provisions, Virginia DEQ would 

likely implement and oversee these facilities directly through regulation as we do for the 

municipal solid waste landfill provisions under 40 CFR 258. In general, the full regulatory 

process in Virginia takes almost two years to complete and, therefore, Virginia DEQ would need 

additional time to incorporate these requirements into current regulations before a CCR program 

could be implemented. Funding for this expanded CCR program will also be a barrier to 

implementation, as Virginia DEQ has had numerous budget cuts in the last few years. Federal 

funding for this program and more time to allow the states to undertake regulatory action and to 

implement the program will be necessary.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
492

Comment Number: EPA-HQ-RCRA-2009-0640-09284-7

Organization1:Virginia Department of Environmental Quality

Commenter1: Jeffery A. Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Virginia DEQ does not fully support EPA's proposal to regulate CCRs under the authorities of 

RCRA Subtitle D. While the Subtitle D regulatory approach is greatly preferred over the Subtitle 

C proposal, there are issues that need further consideration if the Subtitle D approach is pursued 

by EPA. The general concern is that the proposed regulations do not provide states with enough 

flexibility regarding CCR management or disposal options. Many states, like Virginia, have a 

long history of dealing with industrial solid waste. TThe regulations need to be flexible enough 

to allow states to use equivalent alternatives rather than a specific "standard" as necessary and 

appropriate. This would include allowing states to evaluate and approve alternate liner and cover 

designs. The prescriptive one-size-fits-all approach is overly burdensome and unnecessary in 

areas where local conditions provide an equivalent degree of protection.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-09337-3

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1

Comment Excerpt Text:

As stated in ADEQ's June 29, 2009 letter to EPA, Arizona already has the appropriate regulatory 

framework in place to protect human health and the environment from CCR management units. 

The adoption of a new federal regulatory program would overlap with Arizona's existing 

regulatory program. A new federal program would require Arizona to expend already strained 

resources to amend its proven state program to conform to a largely unnecessary and unproven 

federal regulatory program.
493

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-09337-32

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.7

Comment Excerpt Text:

Pg. 35247, Section 257.93: The proposed rule will require extensive monitoring and statistical 

analysis of groundwater data that is not compatible with groundwater monitoring requirements 

under Arizona’s Aquifer Protection Program.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-09337-39

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.7.1 7.1.1.3 7.1.2.5

Comment Excerpt Text:

Pg. 35251, Section 257.98: The proposed rule will impose corrective action requirements that 

may not be compatible with elements of Arizona’s corrective action requirements. A.A.C. R18-

9-A204 requires that all individual Aquifer Protection Permits have a contingency plan for 

corrective action. A.A.C. R18-9-A204(B)(8) describes potential corrective actions that may be 
494

required by the ADEQ Director on a facility-specific basis. At the discretion of the ADEQ 

Director, these corrective actions could include source control and soil, surface water, and 

groundwater cleanup. Because current state statute and rule have flexible and facility-specific 

cleanup provisions rather than prescriptive cleanups, potential cleanup issues are already 

addressed by state law. ADEQ also has authority under A.R.S. § 49-287(E)(3) to compel 

corrective actions under Arizona’s State Superfund (WQARF) in circumstances requiring 

significant and extensive cleanups resulting from the release of hazardous substances. The 

WQARF statutes have a very different liability scheme and a different approach to remedy 

selection than either RCRA or CERCLA corrective action requirements. Thus the requirement 

under 257.98 (d)(2) indicating that all remedies must comply with (all) applicable RCRA 

requirement may create conflicts for the state. In practice, the Aquifer Protection Permit program 

has permitted these kinds of facilities since 1986. Because extensive groundwater and 

operational monitoring permit requirements have been effective, no significant releases requiring 

WQARF-ordered cleanups have occurred.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-09358-4

Organization1:Interstate Power and Light Company (IPL) and Wisconsin Power and Light 

Company (WPL)

Commenter1: Kathleen A. Lipp

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

4. A shortcoming of the proposed Subtitle D option is the lack of a provision for state regulatory 

agencies to incorporate the proposed EPA Subtitle D CCR regulations into qualified state 

regulatory programs with state regulatory enforcement authority. The exclusion of qualified state 

programs makes no practical sense and will result in parallel and redundant regulatory programs. 

The final Subtitle D rules for CCRs should include a mechanism for qualified state programs

meeting the federal Subtitle D CCR standards to be administered and enforced by state 

regulatory agencies. EPA could develop a process for evaluating state CCR controls and 

determining that state controls are no less stringent than the final Subtitle D controls in a similar 

manner to how EPA currently reviews and approves state programs for municipal solid waste 

landfills under Subtitle D. EPA would allow the states meeting these CCR management 

standards to administer the controls to avoid the duplication of regulatory programs, with the 

added benefit of eliminating many of the burdensome and confusing self-implementing 
495

procedures currently reflected in the proposed RCRA Subtitle D approach; the state regulatory 

agency would have responsibility for ensuring compliance with the applicable requirements. As 

noted above, the current Wisconsin CCR regulations administered by the WDNR already 

incorporate the majority of the proposed RCRA Subtitle D requirements, with the exception of 

requiring lined surface impoundments ... and these missing elements could be easily 

incorporated. Hence, Wisconsin could easily implement a CCR management program under 

Subtitle D that would fully meet EPA objectives. There is no reason similar programs could not 

be developed and implemented in all remaining states.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-10632_DC-047-4

Organization1:Virginia Department of Environmental Quality

Commenter1:Jeffery Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1

Comment Excerpt Text:

- Both options presented by EPA will have an impact to already strained state budgets. Virginia 

has projected that under the Subtitle C option, an additional $350,000 per year will be needed to 

properly implement the program; under the Subtitle D option, an additional $76,000 per year will 

be needed. The costs of rules cannot be ignored by proposing states implement or increase fees. 

EPA needs to ensure that the rules adopted are protective and avoid unnecessarily and 

unjustifiably high costs to states and society. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2011-0392-0228-7

Organization1:Virginia Department of Environmental Quality (DEQ)
496

Commenter1:Jeffery Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1 7.1.1

Comment Excerpt Text:

As detailed above, Virginia’s regulatory requirements for industrial landfills and the required 

permitting process are comprehensive. Our regulations have changed and strengthened since 

their initial adoption over 40 years ago. These regulations exceed current federal requirements 

which are under 40CFR257. It is with that reasoning, the DEQ continues to believe that our 

program is more than adequate to protect human health and the environment and that further 

federal regulation of this program will provide little to no protective benefit but will 

unnecessarily further strain state budgets.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2011-0392-0238-12

Organization1:Southern Company

Commenter1:Chris Hobson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.3.7

Comment Excerpt Text:

3. Cost Estimates of Subtitle D Regulation 

The NGOs claim that “EPA greatly overestimated the regulatory requirements of many states” 

and that EPA “estimate[d] that far more states will improve their state programs under a subtitle 

D rule.” The NGOs also state: 

EPA’s method of determining which states will adopt subtitle D regulations relies on the 

agency’s interpretation of state law. . . . [B]y misinterpreting state regulatory requirements, EPA 

estimates that far more states will improve their state programs under a subtitle D rule. Because 

EPA proceeds to assign costs and benefits based on this over-optimistic calculation, the Agency 

assigns considerably more health and environmental benefits to state regulation pursuant to 

subtitle D option than is appropriate. [Footnote 39: NGO Comments, supra note 20, at 46.] 
497

First, that position is unfounded because, as discussed above, states’ current regulation of CCBs 

is not determinative as to whether states will adopt Subtitle D regulation if EPA ultimately 

adopts a Subtitle D regulatory program. Second, Southern Company emphasizes that, contrary to 

the NGOs’ position, in its 2010 proposed rule EPA drastically underestimated the costs 

associated with Subtitle D regulation. The engineering requirements between Subtitle C and 

Subtitle D regulation are nearly identical. While the additional, Subtitle C requirements are 

extremely costly, EPA’s predicted cost estimates are grossly underestimated. For example, EPA 

estimates that for the entire industry, the cost of implementing EPA’s Subtitle D regulatory 

program across the entire system would cost $587 million for the next 50 years, [Footnote 40: 75 

Fed. Reg. 35213.] while Southern Company alone estimates [Footnote 41: Southern Company’s 

estimates are pre-screening cost estimates, as distinct from cost estimates for projects that are 

more definite as to the elements and timing of execution.] that implementing the Subtitle D 

regulatory program across the entire system would cost approximately between $9 and $15 

billion. 

Third, Southern Company reaffirms its position that although Southern Company believes no 

Federal regulation of CCBs is warranted, states would operate a robust CCB regulatory program 

under the Subtitle D option, including the D Prime alternative. Such a program would be most 

cost-effective for states and industry, while still providing the same engineering and human 

health protections as a Subtitle C regulatory program. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

The commenter is also referred to Unit IV of the preamble for a discussion on our decision to 

regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a 

complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2011-0392-0255-10

Organization1:North Dakota Department of Health

Commenter1:Scott Radig

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1 7.3.1

Comment Excerpt Text:

We believe our solid waste rules provide a sound framework for effective regulation. North 

Dakota works to ensure that each solid waste structure for CCRs is effectively regulated and 
498

constructed in accordance with generally accepted engineering and environmental standards for 

structural integrity and waste containment. If structures are found to be deficient, such structures 

will be corrected or closed. The existing North Dakota solid waste rules and permit process have 

been proven to be protective and provide the most expedient method for addressing 

environmental protection and mitigation issues. EPA should defer to state programs with proven 

track records where the state has better knowledge of local conditions. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2011-0392-0271-12

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Ed Thamke

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1

Comment Excerpt Text:

Earthjustice Prediction of States That Will Not Adopt Subtitle D Criteria Failed 

In an elaborate evaluation, based in part on EPA’s analysis in the 2010 RIA, Earthjustice makes 

predictions about the likelihood of States adopting EPA’s June 21, 2010 Subtitle D proposal. The 

analysis is so convoluted and subjective that it is difficult to analyze. However, a critique of its 

method is not necessary, because the conclusions it draws about States have already been proved 

inaccurate. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
499

Comment Number: EPA-HQ-RCRA-2011-0392-0271-14

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Ed Thamke

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1

Comment Excerpt Text:

Iowa - Iowa was in the process of developing a proposal to regulate coal ash disposal when EPA 

published the proposed rule on June 21, 2010. Consequently, Iowa postponed its rulemaking 

pending the outcome of the EPA regulatory proposal. [Footnote 46: E-mail correspondence with 

Brian Tormey, Chief, Land Quality Bureau, Iowa Department of Natural Resources, November 

10, 2011] 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2011-0392-0271-15

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Ed Thamke

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.4.2

Comment Excerpt Text:

State Support for Federal Subtitle D Regulation 

States have expressed overwhelming support for federal Subtitle D regulation of CCR. However, 

as demonstrated by Iowa’s experience, it is unlikely that States will proceed with regulations 

until it is clear what the course of federal regulation of CCR will be. 

There are recent indications that States would adopt a federal proposal for Subtitle D regulation 

of CCR. There has been significant State support for the Coal Residuals Reuse and Management 

Act (H.R. 2273), which provides a federal framework for State regulation of CCR patterned after 

Subtitle D, Part 258 regulations. H.R. 2273 is considered more effective than EPA’s June 21, 

2010 Subtitle D proposal, because, among other things, it provides for the implementation of 

State permitting programs. 

Commonwealth of Virginia Governor Robert F. McDonnell wrote a letter of support for H.R. 

2273 on October 11, 2011 recognizing that the bill’s State permit program: 
500

“is a realistic approach to dealing with CCR and although it will require effort to implement in 

Virginia, ....it would provide the appropriate and necessary protection for Virginia’s 

environment and citizens ...” [emphasis added] 

The Governor’s letter acknowledges the required “effort to implement” the proposed permit 

program not only for its benefits to human health and the environment, but to avoid the negative 

impacts of Subtitle C regulation. 

Numerous States wrote in support of H.R. 2273. States have also expressed their support in their 

response to this NODA: 

Ohio letter to RCRA Docket ID# EPA-HQ-RCRA-2011-0392 dated October 28, 2011: 

“Ohio is supportive of a subtitle D regulatory approach either through U.S. EPA rule adoption or 

passage of the Coal Residuals Reuse and Management Act (HR 2273).” 

Pennsylvania’s letter to Docket ID# EPA-HQ-RCRA-2011-0392 dated November 8, 2011: 

“Pennsylvania’s experience is a testament to how well and how responsively the individual states 

can and do regulate in this area. Indeed, as Pennsylvania’s experience with Chapter 290 

demonstrates, the states are better and more agile at doing so than is the federal government, 

which is one of the main underpinnings of HR 2273 recently passed by the House of

Representatives. HR 2273 would provide general management guidelines under which states 

would able to implement environmentally protective programs that meet individual state needs, a 

much better approach than designating a non-hazardous material a hazardous waste.” 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2011-0392-0284-3

Organization1:Alabama Department of Environmental Management (ADEM)

Commenter1:Wm. Gerald Hardy

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1 7.1.1.1 7.1.1.2

Comment Excerpt Text:

As for the newly-passed state law, not only did Alabama elect to regulate coal ash as a solid 
501

waste effective immediately, it specifically authorized the future adoption and implementation of 

a federal regulatory program for disposal of CCR. Until such time as said federal program is 

adopted, the disposal of CCR would fall under Alabama's existing solid waste requirements. 

Under these regulations, coal combustion by-products are classified as an industrial solid waste 

and are subject to a hazardous waste determination. If determined to be non-hazardous, the waste 

must be disposed of in accordance with ADEM's Solid Waste Program requirements for 

industrial waste. Landfills permitted to accept this type waste must be constructed with liner and 

leachate collection systems and must also conduct periodic groundwater monitoring.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: TRANS-ARL-0029-2

Organization1:Utility Solid Waste Activities Group

Commenter1:Pam Faggert

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

A major shortcoming, however, of the Subtitle D and D prime approach is the lack of any 

mechanism for the states to step in and administer the regulations. Where state regulatory 

programs meet or exceed the EPA proposed Subtitle D standards, it makes no sense to not allow 

these qualified state programs to administer the federal Subtitle D rules

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: TRANS-LVL-0044-2

Organization1:Duke Energy Indiana

Commenter1:Bryan Walsh
502

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 regulation. Clearly, there are 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 Stub -- 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. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

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503

Section 7.4.2 - Other

Total Number of Submissions: 25

Total Number of Comments: 35

Comment Number: EPA-HQ-RCRA-2009-0640-06298-61

Organization1:Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Page 35173, Column 1:

"Specifically, in addition to EPA placing sites on the NPL due to the disposal or indiscriminant 

placement of CCRs, at least 12 states have issued administrative orders for corrective actions at 

CCR disposal sites."

This is clear evidence that states will take appropriate action if there is a legitimate problem or 

threat to human health and the environment. It must also be noted that CCRs were not the sole or 

main contributing factor to a majority of these sites that are being placed on the NPL. This also 

adds regulation under Subtitle C is not warranted because EPA has other regulatory paths to 

pursue where there are threats to public safety and the environment. Releases from CCR disposal 

units can be controlled and mitigated under current CERCLA regulations and state statutes 

coupled with the new Subtitle D regulations to ensure proper management going forward.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06400-14

Organization1:Waste Management (WM)

Commenter1: Susan Briggum

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.7.4 4.4.7.7.2 4.8 4.2.3.1 4.2.3.2 4.2.6 10.5.2.3

Comment Excerpt Text:

Subtitle D standards tailored to the characteristics of CCRs: EPA’s proposed liner and 

monitoring standards make sense and, as EPA demonstrates, will provide sound and reliable 

long-term protection. The addition of a 4010 permit for CCR facilities provides the mechanism 

to respond to monitoring results and provide assurance of compliance.

EPA’s proposal, however, focuses largely on the absence of a permit and the concept that a 

licensed professional engineer’s judgment will take care of the details in terms of proper CCR 
504

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 

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 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 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 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 (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. 

___________________________________________________________________

Comment Number: EPA-HQ-RCRA-2009-0640-06400-4

Organization1:Waste Management (WM)

Commenter1: Susan Briggum

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1 2.1.2 2.1.6 7.3.3

Comment Excerpt Text:

Long-term implications of EPA’s interpretation of its 4010 authority: Most of EPA’s rationale 

for considering RCRA Subtitle C regulation of CCRs derives wholly from its self-imposed 

limitation on RCRA to provide EPA regulatory authority only for hazardous wastes and 

municipal solid waste (“MSW”) [Footnote 2: As EPA acknowledges, “the technical unit design 

and groundwater monitoring requirements that will effectively protect human health and the 

environment under either option are quite similar.” CCR Proposal at 35159.]. This constrained 
505

reading of RCRA leaves EPA now and in the future with very little authority to meet RCRA’s 

mandate to protect human health and the environment. Under the rational of this rule, of the 7.6 

billion tons of solid waste EPA estimates to be in existence [Footnote 3: See 

http://www.epa.gov/osw/nonhaz/index.htm. ] , the Agency would have regulatory authority over 

only 46 million tons of hazardous waste (6.9 million tons of non-wastewater) (CCR Proposal at 

35172) and 250 million tons of MSW . This constitutes less than four percent of the wastes for 

which RCRA could provide protection.

This limitation is very shortsighted, and undervalues the important protections EPA and the 

states have afforded communities under RCRA authority. Our experience under the RCRA 

Subtitle C and D programs has been comparable; under both programs, we see state regulators 

bringing expertise and rigor to the task of permitting and overseeing hazardous waste and MSW 

landfills, assuring the facilities achieve RCRA’s goal of protecting human health and the 

environment [Footnote 4: For a recent assessment of the effectiveness of EPA’s regulatory 

program for MSW landfills, see http://www.wm.com/sustainability/pdfs/Geosyntec_report_-

_Environmental_Protection_at_the_Managed_Solid_Waste_Landfill_06201.pdf.]. When EPA 

has provided the kinds of clear and detailed guidelines evident in the RCRA Subtitle C 

regulations and Subtitle D criteria for MSW landfills, state regulatory authorities responded with 

programs implementing the high siting, technical and operational standards EPA intended. The 

states assure those standards remain in force for the life of a facility’s permit, including the 

necessary post-closure monitoring period. Through the approval process and as states revise their 

programs over the years, EPA Headquarters and, in particular, the Regions provide scrutiny, 

technical assistance and oversight.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06424-10

Organization1:Garrett & Moore, Inc.

Commenter1: Bernie Garrett

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.7 7.1

Comment Excerpt Text:

Consideration for Existing CCR Surface Impoundments and Existing CCR Landfills 

Constructed with Engineered Liner Systems Obviously, the focus of the proposed rules are the 

older, unlined, existing CCR surface impoundments that were constructed 20 or more years ago 

absent of today’s environmental rules and construction standards. However, many existing CCR 

surface impoundments and existing CCR landfills have been permitted and constructed under 

current environmental rules that have required liners, leachate collection systems, and other 

modern controls. The liners and leachate collection systems in these modern facilities were 

approved by state regulatory agencies and were deemed protective of human health and the 

environment. However, in many cases the liner systems, leachate collection systems, or other 
506

controls, may not match the specific design criteria in EPA’s proposed rule. There should be 

provisions in EPA’s rules, allowing for the states, when adopting EPA’s rules, to “grandfather” 

these modern existing CCR surface impoundments and existing CCR landfills.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06424-3

Organization1:Garrett & Moore, Inc.

Commenter1: Bernie Garrett

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 1.5 4.2.2 4.2.4

Comment Excerpt Text:

State Adoption of EPA Rules

EPA should use the same methodology for regulating CCRs as was used in implementing the 

Subtitle D landfill rules for municipal solid waste. EPA should adopt rules setting a minimum 

standard, provide for the adoption of these rules by the states, and maintain enforcement 

authority for these 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 IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06832-22

Organization1:SCANA Corporation

Commenter1: Shirley M. Ruffin
507

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The EPA should use the same methodology for regulating CCRs as was used in implementing 

the Subtitle D landfill rules for municipal solid waste. The EPA should adopt rules setting a 

minimum standard, provide for the adoption of the rules by the states, and maintain enforcement 

authority for the rules in states that the EPA determines have not adequately implemented the 

rules. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06832-26

Organization1:SCANA Corporation

Commenter1: Shirley M. Ruffin

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.5 5.6

Comment Excerpt Text:

Consideration for Existing CCR Surface Impoundments and Existing CCR Landfills Constructed 

with Engineered Liner Systems 

Obviously, the focus of the proposed rules are the older, unlined, existing CCR surface 

impoundments that were constructed 20 or more years ago absent of today’s environmental rules 

and construction standards. However, many existing CCR surface impoundments and existing 

CCR landfills have been permitted and constructed under current environmental rules that have 

required liners, leachate collection systems, and other modern controls. The liners and leachate 

collection systems in these modern facilities were approved by state regulatory agencies and 

were deemed protective of human health and the environment. However, in many cases the liner 

systems, leachate collection systems, or other controls, may not match the specific design criteria 

in the EPA’s proposed rule.

There should be provisions in the EPA’s rules, allowing for the states, when adopting the EPA’s 

rules, to grandfather modern existing CCR surface impoundments and CCR landfills.
508

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06833-3

Organization1:Dominion Resources Services, Inc.

Commenter1: Lisa J. Keck on behalf of Pamela Faggert

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Furthermore, we believe that the Subtitle D program should allow state regulatory agencies to 

administer the federal Subtitle D rule for CCRs, as well as rules regarding dam safety, to avoid 

duplication of federal and state efforts and to be protective of human health and the environment. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06833-9

Organization1:Dominion Resources Services, Inc.

Commenter1: Lisa J. Keck on behalf of Pamela Faggert

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Even though Dominion supports the development of federal non-hazardous waste rules for CCRs 

under the RCRA Subtitle D program, improvements to the proposed rule arc needed for any of 

the proposed Subtitle D options, including the D Prime option. These improvements should 

allow for administration by state regulatory agencies of the federal Subtitle D rules for CCRs to 
509

avoid duplication of federal and state efforts, as called for by Congress in the Bevill Amendment. 

This would allow states to enforce compliance through a traditional permitting framework. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06838-16

Organization1:Minnesota Pollution Control Agency (MPCA)

Commenter1: Lisa Mojsiej on behalf of Tim Scherkenbach

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1

Comment Excerpt Text:

Today's Co-Proposed Regulations-General: 

The MPCA supports the USEPA's effort to establish national standards and minimum 

requirements for CCR disposal facilities. Minnesota currently has a program that is protective of 

the environment and human health. However, not all states maintain similar standards. The 

USEPA should promulgate standards to ensure all future CCR disposal facilities are protective. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06838-28

Organization1:Minnesota Pollution Control Agency (MPCA)

Commenter1: Lisa Mojsiej on behalf of Tim Scherkenbach

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
510

Comment Excerpt Text:

If the Subtitle D option was promulgated, MPCA staff recommend the adoption of the 

requirements into state rule, but it is not necessary to continue permitting and regulating CCR 

facilities in Minnesota.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06864-2

Organization1:Hull & Associates, Inc.

Commenter1: William G. Petruzzi

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.2

Comment Excerpt Text:

If the US EPA does choose to proceed with the initiative to regulate CCR as a solid waste, then 

CCR should be designated as a special class 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 one 

size fits all approach is probably not workable – the rules need to fit within each State’s own 

environmental protection programs. Taking into account and CCR characteristics, 

geological/hydrogeological conditions and/or other variables that need to be considered. This 

will allow States to control programs under their enforcement authority, and to provide for the 

flexibility for each State to consider developing programs that address the following guidelines: 

1. Assure 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. 
511

4. Following a risk-based approach. 

5. Establishing a performance based approach. 

6. Do not over or under regulate. 

7. Consider retrofitting existing sites to meet performance standards rather than mandating the 

closure of existing sites and replacement with new sites. 

8. Allow options for assessing sites and demonstrating equivalencies rather than meeting specific 

technical specifications. 

9. Focus on cost benefits. 

10. Appreciate timing requirements for siting, design, permitting, and constructing new (or 

upgraded) units/facilities. 

11. Explore additional beneficial use opportunities. 

12. Consider resource conservation. 

13. Allow for technical demonstrations to support requests for variances and/or exclusions to 

allow for new technologies and products to be applied as technologies evolve and get introduced 

to the market. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

The commenter is also referred to Unit IV of the preamble for a discussion on our decision to 

regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a 

complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06912-14

Organization1:Sunflower Electric Power Corporation

Commenter1: Paul E. Reynolds

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:
512

In order to allow states to develop appropriate controls like those at SEPC’s Landfill without 

burdening facilities with one-size-fits-all requirements, states must be given a role in 

implementing the Subtitle D option. It is absolutely essential to recognize and allow for State 

administration of the Subtitle D option in order to avoid duplication with existing State programs 

and provide the Subtitle D option with the direct permitting mechanism EPA desires.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06912-17

Organization1:Sunflower Electric Power Corporation

Commenter1: Paul E. Reynolds

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1

Comment Excerpt Text:

SEPC believes the best approach to regulating CCRs nationally is to develop regulations under 

Subtitle D, including a required permitting program that can be administered by states, with 

sufficient flexibility to consider local conditions.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06917-19

Organization1:Texas Commission on Environmental Quality (TCEQ)

Commenter1: Tangela Niemann on behalf of Mark R. Vickery

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
513

Comment Excerpt Text:

The Subtitle D option, as compared with Subtitle C, is faster and less costly to implement, as 

further discussed below under "Impact of EPA Subtitle C Proposal on the state Permitting 

Program." EPA acknowledges that implementation of minimum standards can be achieved faster 

under Subtitle D than under Subtitle C. In addition, state administrative costs are much lower for 

Subtitle D than for Subtitle C (see costs from Table 1, 75 FR, June 21, 2010, page 35134 as 

amended on August 20, 2010 at 75 FR pp 51435). Planning and implementation of a Subtitle D 

solid waste program for CCRs would save federal resources because the states would be the 

primary authority to administer the program.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06917-35

Organization1:Texas Commission on Environmental Quality (TCEQ)

Commenter1: Tangela Niemann on behalf of Mark R. Vickery

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.3.7

Comment Excerpt Text:

Administering RCRA Subtitle D offers cost benefits to the states, federal government, and CCR 

generators, as compared with Subtitle C. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06921-28

Organization1:Associated General Contractors of America (AGC)

Commenter1: Melinda L. Tomaino

Commenter Type: Trade Association
514

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In the very beginning of the proposed rule, EPA states that the central issue is not whether 

subtitle D would adequately safeguard human health and the environment, rather it is whether 

states programs would be adequate. “The Agency would implement similar technical controls 

under RCRA subtitle C or D. Therefore, a central issue is the adequacy of State programs. Under 

either regulatory approach, State programs will have key implementation roles.” EPA observes 

that states do not have liner requirements, yet, even so, “we also observe that nearly all new CCR 

landfills and surface impoundments are constructed with liners.” EPA seems to doubt that states 

would follow guidelines under subtitle D, yet the agency appears to contradict itself by then 

stating that “states have considerable expertise in their State dam safety programs” and that 

“those programs do not tend to be part of State solid waste or clean water act programs, and so, 

oversight may not be adequately captured in EPA’s existing data.” (See 75 FR 35133) DOE has 

summarized studies it conducted that show the improved management of coal combustion wastes 

at power plants nationwide. DOE also projects these safe practices to increase when states are 

“empowered” through subtitle D. (See EPA-HQ-RCRA-2009-0640-0084) 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-06987-7

Organization1:Entergy Services, Inc.

Commenter1: Joseph Hantz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.2 4.5.1

Comment Excerpt Text:

However, Entergy contends that the Subtitle D “Prime” option, as written, requires 

improvements, including allowing for administration of the federal Subtitle D rules for CCRs by 

state regulatory programs to avoid duplication of federal and state efforts. This would also allow 

states to enforce compliance through a traditional permitting framework. 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 

landfills that may receive conditionally exempt small quantity generator hazardous waste.
515

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-07488-2

Organization1:Illinois Environmental Protection Agency

Commenter1: Scott O. Phillips

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1

Comment Excerpt Text:

However, if USEPA believes that uniform statewide regulations based on the RCRA model are 

warranted, Illinois EPA prefers the regulation of CCR under RCRA Subtitle D. The RCRA 

Subtitle D option is protective of human health and the environment, and would be less costly for 

Illinois to implement.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-07488-4

Organization1:Illinois Environmental Protection Agency

Commenter1: Scott O. Phillips

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1

Comment Excerpt Text:

A well-run regulatory program based on the RCRA Subtitle D option would provide comparable 

protection to human health and the environment at far less cost to the states.
516

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-07533-26

Organization1:Nebraska Department of Environmental Quality (NDEQ)

Commenter1: David B. Haldeman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.3

Comment Excerpt Text:

It would be helpful if EPA would clarify in its final rule how state voluntary cleanup programs 

might be used to address corrective action found necessary at CCR landfills under either a 

Subtitle C or Subtitle D approach.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07791-5

Organization1:Georgia Department of Natural Resources (GAEPD)

Commenter1: Jim Brown for Mark Smith

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3 4.6.1.4

Comment Excerpt Text:

EPA requests comment, at 75FR35148 and 35210, regarding a "D prime" regulatory option. 

Should EPA determine that national regulations are required, this is Georgia's preferred 

approach, to optimize both state resources and the limited funds available to the regulated 

community. Under this approach, GAEPD would prioritize all operating surface impoundments 

based on remaining capacity, structural integrity, and groundwater contamination risk to 

determine which impoundments pose the greatest risk. Information provided by utilities in the 

state indicates that the majority of active ash ponds have 10-20+ years capacity/service life 

remaining. Using the corrective action authority in GAEPD's rules, those impoundments posing 

unacceptable hazards would be quickly moved to closure or retrofitting. While it may take many 

years to close all currently operating impoundments, those that continue to operate the longest 

will have proven they can do so in an environmentally safe manner. We estimate that two 

additional full-time staff (FTE) would be needed to handle the additional workload under the "D 
517

prime" scenario.

Georgia's second preference would be the Subtitle D approach, the majority of which is already 

incorporated into our Rules, as demonstrated below. Significantly more staff would be required, 

due to the short timeframes proposed; current estimates are seven new FTEs. Little time would 

be available to prioritize sites. If the regulated community were unable to fully comply with the 

stringent deadlines proposed due to financial constraints, it is possible that high hazard sites may 

not be fully remediated; comment specifically requested at 75FR35199. Consequently, GAEPD 

considers that the extensive resources required to pursue this option are simply not warranted. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-08218-80

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5

Comment Excerpt Text:

The approach like that used for 40 CFR 239, to implement 40 CFR 258 would present the fewest 

procedural difficulties. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-08226-17

Organization1:Ohio Environmental Protection Agency

Commenter1: Chris Korleski

Commenter Type: State Government
518

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1

Comment Excerpt Text:

The State of Ohio through two state agencies, Ohio EPA and the Ohio Department of Natural 

Resources, has current regulatory programs overseeing the disposal of CCR in surface 

impoundments and landfills, including dam safety requirements. Adoption of the subtitle C 

option would impart undue disruption, burden and costs on Ohio by forcing the agencies to 

recreate, re-distribute and re-adopt a regulatory program that is already established and 

implemented in Ohio. It is a waste of limited state resources to expend man hours on recreating 

an existing state regulatory program. However, the subtitle D approach to the regulation of CCR 

can be incorporated into Ohio’s existing regulatory programs in a cost effective manner. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-08251-43

Organization1:Massachusetts Department of Environmental Protection

Commenter1: James C. Colman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.3.1

Comment Excerpt Text:

In general, the cost of implementing a Subtitle C program will be much higher than the cost of 

implementing a Subtitle D program. Implementation cost for a Subtitle D program should be 

relatively low for most states that have an established Subtitle D solid waste program. As stated 

previously, Massachusetts already has solid waste regulations that are equivalent to or more 

stringent than the proposed EPA regulations. Those regulations would require few, if any, 

modifications to be implemented under a federal CCR program. Existing landfills in 

Massachusetts that already manage CCR are permitted and would therefore have few, if any, 

additional costs to come into compliance with the proposed Subtitle D approach. MassDEP has a 

solid waste program that reviews landfill permit applications. The landfills currently being used 

for CCR disposal in state meet or exceed design standards proposed by EPA. Therefore, the cost 

of implementing the Subtitle D proposed rules would be minimal. 
519

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2011-0392-0196-1

Organization1:Alaska Department of Environmental Conservation (ADEC)

Commenter1:Kristin Ryan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1

Comment Excerpt Text:

In accordance with section VII, paragraph 1 of the NODA, the ADEC is providing comments on 

a report regarding purported gaps in state regulatory programs for CCRs that was submitted to 

the EPA by Earthjustice, Environmental Integrity Project, Sierra Club, Natural Resources 

Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, and 

Physicians for Social Responsibility (document no. EPA-HQ-RCRA-2009-0640-6315). 

The ADEC has two primary concerns with the subject report. Our first concern is that in Table 

28 (page 48) Alaska is erroneously listed among the states that are NOT expected to implement 

new Subtitle D standards for CCR facilities. We find this interesting because Alaska intends to 

revise its approved Subtitle D program as needed to comply with any revisions to 40 CFR 258. 

(Please note that Alaska was the first state in Region 10 to revise its Subtitle D program to adopt 

the Research, Development, and Design regulations of 40 CFR 258.4.) We understand that Table 

28 is pulled from another source; but verifying Alaska's intent required nothing more than a 

telephone call to the ADEC. This step should have been considered necessary because Alaska is 

not included in the analysis of state programs represented by Tables 1 through 27 in the report, 

nor is Alaska mentioned in the purported source document on which Table 28 is based. The 

ADEC is very concerned over the fact that the authors are willing to report as fact something that 

they have neither researched nor attempted to verify. Such action raises significant doubts about 

the accuracy and validity of the entire report. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
520

Comment Number: EPA-HQ-RCRA-2011-0392-0196-3

Organization1:Alaska Department of Environmental Conservation (ADEC)

Commenter1:Kristin Ryan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.4.1.1.2 4.4.5.1.1

Comment Excerpt Text:

In closing these comments, the ADEC confirms that if and when a national standard is 

implemented, Alaska intends to revise its regulatory program for CCRs to comply with that 

standard. In this regard, the ADEC reminds the EPA that our comments on the proposed 

regulations (see docket no. EPA-HQRCRA- 2009-0640-6409) included a request for flexibility 

in the liner requirements specified under both the proposed Subtitle C and Subtitle D options. 

Flexibility is needed because the prescribed composite liner cannot be built in Alaska due to a 

general lack of soil material with a hydraulic conductivity meeting the standard for the composite 

liner. Alaska envisions the same level of flexibility that is allowed under 40 CFR 258.40(a) and 

(c).

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2011-0392-0238-11

Organization1:Southern Company

Commenter1:Chris Hobson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

2. Likelihood of State Adoption of Federal Standards 

The NGO Comments discuss at length EPA’s 2010 RIA [Footnote 34: Office of Res. 

Conservation & Recovery, U.S. EPA, Regulatory Impact Analysis for EPA’s Proposed RCRA 

Regulation of Coal Combustion Residues (CCR) Generated by the Electric Utility Industry (Doc. 

No. EPA-HQ-RCRA-200909640-0003) (Apr. 2010).] regarding EPA’s analysis that many states 

will not adopt the federal criteria for regulation of CCBs if EPA adopts its Subtitle D option as 
521

opposed to its Subtitle C option. The NGOs assert that EPA actually overestimated the number 

of states that will implement regulations that are consistent with Subtitle D. [Footnote 35: NGO

Comments, supra note 20, at 47.] This argument relates to the nature of the authority provided by 

Congress to EPA under RCRA Subtitle D. For example, EPA stated in its 2010 proposed rule 

that “the Agency is reticent to establish a regulatory program without any federal oversight.” 

[Footnote 36: 75 Fed. Reg. at 35128, 35157 (June 21, 2010).] First, both EPA and the NGOs 

mischaracterize the efficacy of the state programs. Second, EPA ignores aspects of its regulatory 

authority under Subtitle D. 

EPA and the NGOs refer to states that have not developed RCRA-type regulations for CCBs and 

then predict whether states will implement regulations consistent with Subtitle D if EPA does, in 

fact, adopt a Subtitle D program for CCBs. However, as Southern Company has demonstrated in 

its prior comments, [Footnote 37: Southern Company Comments, supra note 2, at 19-20.] 

reference to the status quo is not predictive in the context of CCB state regulation because EPA 

has not promulgated regulatory standards for CCBs, and, under the Bevill Amendment, states are 

not required to take action until EPA provides regulatory direction. The more important question 

is what states will do in the event EPA does adopt Subtitle D standards. The only way to assess 

this is to review states’ responses to Subtitle D standards in the past. If EPA has issued Subtitle 

D guidance for solid waste streams for which EPA lacked direct enforcement authority, and 

states and industry have failed to respond in a manner EPA deems appropriate, that set of facts 

may inform deliberations on the question of how states would respond to Subtitle D standards for 

CCBs. EPA has not assessed that issue. Instead, EPA assessed state performance in an area 

where EPA itself has had authority to take regulatory action for more than thirty years and has 

declined to do so. Accordingly, EPA and the NGOs have no basis for predicting whether, in the 

context of Subtitle D regulation for CCBs, states will adopt regulations consistent with Federal 

Subtitle D policy. 

EPA and the NGOs assume, with no supporting evidence, that under a Subtitle D program, there 

will be “less compliance” than under a Subtitle C program. EPA implies that it “cannot rely” on 

the Subtitle D mechanisms, because “[u]nder these provisions of RCRA, EPA lacks the authority 

to require state permits, approve state programs, and to enforce the criteria.” [Footnote 38: 75 

Fed. Reg. at 35194.] EPA and the NGOs underestimate EPA’s enforcement authority under a 

Subtitle D regulatory program. 

Accordingly, EPA is not justified in referencing the status of state authorizations when EPA has 

failed to issue federal standards as a justification for adopting a Subtitle C program. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 
522

Comment Number: EPA-HQ-RCRA-2011-0392-0238-13

Organization1:Southern Company

Commenter1:Chris Hobson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

4. States’ Position on Regulation 

One commenter notes that many states showed no overall preference for EPA’s proposed 

regulations under Subtitle D or the D Prime regulatory option. [Footnote 42: Comments of 

Association of State and Territorial Solid Waste Management Officials (ASTSWMO), Doc. No. 

EPA-HQ-RCRA-2009-0640-8787, at 26.] While Southern Company concurs that Subtitle C 

regulation is not warranted, the states’ overall position on this point is insignificant, in that most 

states believe that their own regulations are already mostly compatible with or more stringent 

than such regulations, which that commenter recognizes. [Footnote 43: Id. at 24 (“When State 

regulators were recently asked whether existing State standards/regulations for non-MSW 

facilities are mostly compatible with or more stringent than the existing [40 CFR] Part 257 

minimum standards, 47 out of 47 States responded “yes.”)] In other words, the states are 

generally comfortable that their regulations would comply with either Subtitle D or D Prime 

regulation. That, however, is not helpful in distinguishing the relative advantages and 

disadvantages of the Subtitle D proposal and the D Prime option. 

Southern Company reiterates that while it does not support additional Federal CCB regulation, of 

the three options presented by EPA in its 2010 proposed rule, EPA should adopt a modified 

Subtitle D Prime regulatory program, as opposed to either a Subtitle C or Subtitle D regulatory 

program. Subtitle D Prime regulation would allow utilities to continue to use existing surface 

impoundments for the impoundments’ useful life, which is critical to utilities from a cost and 

timing perspective and is also the environmentally preferable option. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2011-0392-0265-17

Organization1:Department of Environmental Quality, State of Wyoming

Commenter1:John Corra

Commenter Type: State Government
523

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In Table 28 page 48, comments submitted to EPA by Earthjustice et al state that Wyoming is not 

expected to implement Subtitle D requirements. This statement is incorrect. Wyoming believes 

that its existing requirements for CCR landfills are already substantially equivalent to Subtitle D 

and little or no changes to our rules should be necessary to implement EPA's proposed Subtitle D 

regulation of CCRs. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Comment Number: EPA-HQ-RCRA-2011-0392-0271-15

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Ed Thamke

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.4.1

Comment Excerpt Text:

State Support for Federal Subtitle D Regulation 

States have expressed overwhelming support for federal Subtitle D regulation of CCR. However, 

as demonstrated by Iowa’s experience, it is unlikely that States will proceed with regulations 

until it is clear what the course of federal regulation of CCR will be. 

There are recent indications that States would adopt a federal proposal for Subtitle D regulation 

of CCR. There has been significant State support for the Coal Residuals Reuse and Management 

Act (H.R. 2273), which provides a federal framework for State regulation of CCR patterned after 

Subtitle D, Part 258 regulations. H.R. 2273 is considered more effective than EPA’s June 21, 

2010 Subtitle D proposal, because, among other things, it provides for the implementation of 

State permitting programs. 

Commonwealth of Virginia Governor Robert F. McDonnell wrote a letter of support for H.R. 

2273 on October 11, 2011 recognizing that the bill’s State permit program: 
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“is a realistic approach to dealing with CCR and although it will require effort to implement in 

Virginia, ....it would provide the appropriate and necessary protection for Virginia’s 

environment and citizens ...” [emphasis added] 

The Governor’s letter acknowledges the required “effort to implement” the proposed permit 

program not only for its benefits to human health and the environment, but to avoid the negative 

impacts of Subtitle C regulation. 

Numerous States wrote in support of H.R. 2273. States have also expressed their support in their 

response to this NODA: 

Ohio letter to RCRA Docket ID# EPA-HQ-RCRA-2011-0392 dated October 28, 2011: 

“Ohio is supportive of a subtitle D regulatory approach either through U.S. EPA rule adoption or 

passage of the Coal Residuals Reuse and Management Act (HR 2273).” 

Pennsylvania’s letter to Docket ID# EPA-HQ-RCRA-2011-0392 dated November 8, 2011: 

“Pennsylvania’s experience is a testament to how well and how responsively the individual states 

can and do regulate in this area. Indeed, as Pennsylvania’s experience with Chapter 290 

demonstrates, the states are better and more agile at doing so than is the federal government, 

which is one of the main underpinnings of HR 2273 recently passed by the House of 

Representatives. HR 2273 would provide general management guidelines under which states 

would able to implement environmentally protective programs that meet individual state needs, a 

much better approach than designating a non-hazardous material a hazardous waste.” 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.
525

Comment Number: EPA-HQ-RCRA-2011-0392-0276-3

Organization1:Texas Coal Combustion Products Coalition (TCCPC)

Commenter1:Michael Nasi

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

III. The Environmental Groups' Comments incorrectly assume that numerous states would 

choose not to, or be unable to, enact the Subtitle D program as proposed. 

EPA assumed in its proposed rule that under the proposed Subtitle D option, only those states 

that currently impose groundwater monitoring on new surface impoundments will be the states 

that will adopt the program. [Footnote 26: U.S. Environmental Protection Agency, Regulatory 

Impact Analysis for EPA's Proposed RCRA Regulation of Coal Combustion Residues (CCR) 

Generated by the Electric Utility Industry, 124 (Apr. 30, 201 0).] The result is an assumed 

compliance rate of only 48%. [Footnote 27: Id.] The Environmental Groups take this incorrect 

assumption further by asserting that the Subtitle D compliance rate will be even lower and go so 

far as to say that "state programs are incapable of adequately regulating the disposal of coal ash." 

[Footnote 28: Environmental Groups' Comments at 49.] Beyond this one calculation based on 

one element of a CCR regulatory program (i.e. monitoring at new surface impoundments), 

neither the EPA nor the Environmental Groups have adequately provided any other justification 

for why states will not comply at higher rates. 

The Environmental Groups appear to be more concerned with the lack of direct federal 

enforceability under a Subtitle D option than actual compliance itself. In addition to overlooking 

the fact that many of the states already enact similar/comparable programs to the proposed 

Subtitle D programs, the Environmental Groups also fail to adequately account for the 

motivation of the states to protect their citizens and resources. The states are not adversarial to 

these goals and the states have the same motivation and statutory charges as the EPA to 

guarantee these protections. It makes no logical sense to allege that the states would jeopardize 

the health of their citizens. 

The states are the ones that know best whether they will comply with and fully administer a 

Subtitle D program, and their positions should be accorded deference. According to ASTSWMO: 

When State regulators were recently asked whether existing State standards/regulations for nonMSW facilities are mostly compatible with or more stringent than the existing Part 257 minimum 

standards, 47 out of 47 States responded "yes." [Footnote 29: Comments filed by the Association 

of State and Territorial Solid Waste Management, 24 (Nov. 19, 2010), EPA Docket Nos. EPAHQ-RCRA-2009-0640-3936; EPA-HQ-RCRA-2009-0640-8787).] 

..... 

While it may be other State agencies that have enforcement authority for surface impoundments, 

43 out of 44 States indicated that they coordinate with the enforcing entities to require that steps 

are taken to protect human health and the environment. This high level of involvement by State 
526

waste programs is good evidence that if national waste management standards for CCR were 

promulgated, States would adopt those standards just as they have adopted the Part 257 

standards. [Footnote 30: Id. at 24-25.] 

In an even clearer declaration of the states' willingness and ability to comply with a Subtitle D 

option, the ECOS coal ash resolution, attached to ECOS' comments submitted in this docket, 

clearly outline the states' position regarding the necessity of proposing a state-administered 

Subtitle D program over a Subtitle C program and the states' ability to comply with and 

administer a Subtitle D program. The ECOS resolution includes the following conclusions: 

[ECOS a]grees with U.S. EPA's finding in the 2005 study previously cited that "the regulatory 

infrastructure is generally in place at the state level to ensure adequate management of these 

wastes" and believes that states should continue to be the principal regulatory authority for 

regulating CCW as they are best suited to develop and implement CCW regulatory programs 

tailored to specific climate and geological conditions designed to protect human health and the 

environment; 

[ECOS b ]elieves that the adoption and implementation of a federal CCW regulatory program 

would create an additional level of oversight that is not warranted, duplicate existing state 

regulatory programs, and require additional resources to revise or amend existing state programs 

to conform to new federal regulatory programs and to seek U.S. EPA program approval; 

[ECOS c]alls upon U.S. EPA to conclude that additional federal CCW regulations would be 

duplicative of most state programs, are unnecessary, and should not be adopted, but if adopted 

must be developed under RCRA SubtitleD rather than RCRA Subtitle C. [Footnote 31: 

Comments of the Environmental Council of the States, Nov. 19,2010, EPA Docket No. EPAHQ-RCRA-2009- 0640-4003 and EPA-HQ-RCRA-2009-0640-8854.] 

Ultimately, there is no need for conjecture on whether the states would comply with and 

implement a Subtitle D CCR program. The states have been asked and the states have answered

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 
527

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0277-4

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Henry Darwin

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1 7.3.1

Comment Excerpt Text:

Through these requirements implemented by ADEQ, Arizona has a strong regulatory framework 

in place to protect human health and the environment concerning CCR management units. EPA 

should not promulgate new CCR regulations that would adversely impact proven state regulatory 

programs like those that already exist in Arizona.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0280-5

Organization1:Strategic Environmental Analysis, LC

Commenter1:Richard Fortuna

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1 7.3.3

Comment Excerpt Text:

The states are in no position to take this one on alone. They are simply too leveraged by an 
528

industry that provides vital services, and which has gotten used to having their own way on this 

issue for 3 decades. What the Agency is witnessing from the electric utilities in the CCR 

Proposal is no different than what the chemical industry was doing at the time of Superfund’s 

consideration: current managements are simply trying to kick the can down the road by deferring 

liability/expenditures for current and past mismanagement and corner-cutting until the next 

management team takes over. No one wants to take the economic and/or liability hit for years or 

lax environmental management on their watch. The pressure to perpetuate this “deferred liability 

scheme” is most directly visited upon their local and state governments. Absent a strong RCRA 

regulatory mandate such as was contained in the Proposal, the states will be left to fend for 

themselves but few tools to prevent the next Kingston. For the sake of the residents near these 

230+ facilities, and in order to give the states the tools they truly need to fend off an unrelenting 

faction, the Agency must regulate CCRS as a RCRA “hazardous waste” with all due speed.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans. 

Moreover, because EPA is deferring its final Bevill Determination, EPA has not responded to 

comments that pertain exclusively to that issue. However EPA has responded to significant 

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For 

example, because EPA is relying on the damage cases to support certain aspects of the 

technical requirements, EPA has responded to comments relating to the accuracy of the facts 

involved in the damage cases. EPA has not, however, responded to many comments on state 

programs because the Agency has made no final conclusions on the adequacy of those 

programs and is not relying on state programs to support any of the final rule’s provisions.

Comment Number: EPA-HQ-RCRA-2011-0392-0286-2

Organization1:FirstEnergy Corp.

Commenter1:Mike Horvath

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.3

Comment Excerpt Text:

FirstEnergy comment:

Of the 35 states whose submittals are available in this NODA, it is important to note that all but 

one state, New Mexico, reject the concept of regulating coal combustion products as RCRA C 

hazardous waste. FirstEnergy agrees with the comments of those 34 states that RCRA C 

regulation is unnecessary. Regarding the position of New Mexico, we support any state 
529

determination that their state regulations should go beyond the RCRA D nationally favored 

baseline approach to coal combustion byproduct regulation . Ideally, every state has the right to 

determine the level of required regulation of their own state wastes and wastes they accept from 

other states to protect the environment and to consider the geographical, geological, and 

hydrologic aspects of that state.

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. 

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the 

technical standards the Agency is promulgating in this rule. Furthermore, the commenter is 

also referred to Unit IX of the preamble for a discussion on how EPA expect states to 

incorporate the CCR rules into state solid waste management plans.