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 3: Scope and Purpose, Effective Dates, 

Applicability, Off-site Disposal & Definitions

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.
ii

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) 

3

Scope and Purpose/Effective Dates/Applicability/Off-site 

Disposal/Definitions 

4 Location Restrictions 

5 Design Criteria: Liners and Leachate Collection Systems

6 Design Criteria: Structural Integrity 

7

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

Run-off 

8 Operating Criteria: Air Criteria 

9 Groundwater and Corrective Action 

10 Closure and Post-Closure Care 

11 Additional Comments including Overfills/ Harmonization with ELG. 

12 Beneficial 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 

This volume summarizes comments received on the proposed scope and purpose, 

effective dates, applicability, off-site disposal, and definitions.

CommentWorks sections reviewed for this comment/response document (to be deleted for final 

document):

Section 4.4.1 - Proposed modifications to Part 257, Subpart A (35195)

Section 4.4.2 - General provisions (35195-35196

Section 4.4.2.1 - Applicability of definition of SW disposal facilities subject to Subtitle D 

(35195)

Section 4.4.2.2 - Applicability of open dumping criteria (35195-35196)

Section 4.4.3 – Definitions

Section 4.4.10 - Off-site disposal (35210)

Section 4.6.1 - Effective dates

Section 4.6.1.1 - 180-day effective date after promulgation of final rule (35210, 35195-35196)

Section 4.6.1.2 - Within 5 years after rule’s effective date for existing CCR LFs and SIs for liner 

requirements (35210)

Section 4.6.1.3 - Within 1 year after rule’s effective date for existing CCR LFs and SIs for GW 

monitoring requirements/installation of GW monitoring system (35210, 35205)

Section 4.7 - Subtitle D Regulatory Language Changes/Suggestions 
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Comments and EPA Responses on the Scope and Purpose of the Rule

EPA proposed that its June 21, 2010 proposed rule would apply to all coal combustion 

residuals (CCRs) generated by electric utilities and independent power producers. The proposed 

rule would not address the placement of CCRs in minefills. The U. S. Department of Interior 

(DOI) and EPA will address the management of CCRs in minefills in a separate regulatory 

action(s), consistent with the approach recommended by the National Academy of Sciences, 

recognizing the expertise of DOI’s Office of Surface Mining Reclamation and Enforcement in 

this area.1 In addition, proposed rule would not apply to coal combustion residuals that are 

beneficially used.2 Furthermore, EPA proposed that the rule would not apply to CCR from nonutility boilers burning coal.

1. EPA Should Clarify Whether States’ or Federal Regulations Take Precedence.

Comment: Should there be a discussion as to whose (State or Federal) requirements 

prevail, or perhaps the more conservative of the two, etc.?

Comment Number: EPA-HQ-RCRA-2009-0640-09337-49

Organization: Arizona Department of Environmental Quality (ADEQ)

Commenter Type: State Government

Response: EPA encourages the states to adopt the final Subtitle D criteria; however, the 

Agency has no authority to require states to adopt such criteria, or to implement the criteria. Nor 

does EPA have authority to require federal approval procedures for state adoption of the 

minimum nationwide criteria. States are free to develop their own regulations and/or permitting 

programs using their solid waste laws or other state authorities. While states are not required to 

adopt the final federal criteria, some states (about 25) incorporate federal regulations by 

reference or have specific state statutory requirements that their state program can be no more 

stringent than the federal regulations (about 12, with varying degrees of exceptions). In those 

cases, EPA would expect that these states would adopt the final federal regulations, consistent 

with their state laws and administrative procedures. If the states do not adopt or adopt different 

 

1 The National Research Council (NRC) Committee on Mine Placement of Coal Combustion Wastes stated: “The 

committee believes that OSM and its SMCRA state partners should take the lead in developing new national 

standards for CCR use in mines because the framework is in place to deal with mine-related issues.” National 

Academy of Sciences. Managing Coal Combustion Residues in Mines; The National Academies Press, Washington, 

D.C., 2006. 

2 The NRC committee recommended “that secondary uses of CCRs that pose minimal risks to human health and the 

environment be strongly encouraged.” Ibid
2

standards for the management of CCRs, facilities are still required to comply with the final 

subtitle D criteria independently of those state regulations. Thus, even in the absence of a state 

program, CCR landfills and CCR surface impoundments are required to meet the final federal 

minimum criteria as set out in 40 CFR Part 257, Subpart D.

2. CCR surface impoundments and landfills subject to existing state programs should be exempt

from the rule.

Comment: The underlying premise behind the Subtitle D proposal is that the states are 

inadequately governing the operation and closure of CCR surface impoundments and landfills. 

However, several states have robust programs in which CCR surface impoundments and landfills 

are subject to state permitting, consent decrees, groundwater management programs, and site 

remediation programs. When such state oversight exists that requires the state to approve the 

design, operation, closure, post-closure care, and groundwater monitoring, no federal regulation

is necessary. Therefore, an exemption should exist for CCR surface impoundments and landfills 

that are subject to state permitting, consent decrees, groundwater management programs, or site 

remediation programs that require the state to approve the design, operation, closure, postclosure care, and groundwater monitoring of the CCR surface impoundment or landfill.

Comment Number: EPA-HQ-RCRA-2009-0640-06529-30

Organization: NiSource Corporate Services

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06532-26

Organization: Southern Illinois Power Cooperative

Commenter Type: Electric Utility Company

Response: The Agency disagrees. To support a standard under section 1008(a) or 

4004(a) EPA is required to prove that the rules will be protective based on the record available at 

the time the rule is promulgated. In the absence of a record demonstrating the adequacy of state 

programs, EPA cannot simply rely on subsequent state action to demonstrate that a particular 

requirement will meet the 4004(a) standard. As discussed in Section IV of the preamble to the 

final rule, the mere existence of state requirements for state approval of the design, operation, 

closure, post-closure care, and groundwater monitoring does not prove the adequacy of the state 

program, but also by how the state implements the requirements (e.g., when and how are 
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variances or exemptions granted). And as discussed in Section IV, EPA lacks sufficient 

information to make any determination on many state programs. 

3. EPA Should Grandfather modern existing CCR surface impoundments and CCR landfills.

Comment: 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.

Comment Number: EPA-HQ-RCRA-2009-0640-06424-10

Organization: Garrett & Moore, Inc.

Commenter Type: Other Company

Response: EPA does not agree with the commenter that all existing CCR surface 

impoundments and existing CCR landfills that have been permitted and constructed under 

current state requirements should be grandfathered. As discussed in the response to the previous 

comment and in Section IV of the preamble to the final rule, EPA does not have a record 

demonstrating the adequacy of state programs. However, under the final rule, the Agency is 

essentially grandfathering certain existing units if they meet specific requirements. Namely, 

existing CCR landfills can continue to operate whether the unit was constructed with a liner or 

not. Similarly, existing surface impoundments constructed with a liner consisting of either (1) 

two feet of compacted soil with a hydraulic conductivity of no more than 1x10-7cm/sec, (2) a

composite liner that meets the requirements of §257.70(b); or (3) an alternative liner that meets 

the requirements of §257.70(c) can also continue to operate. Existing CCR surface 

impoundments that are not constructed with one of the three enumerated liner types is considered 

an unlined unit. These unlined units can continue to operate provided the owner or operator can 

document that the unlined unit is not “leaking” as described in §257.101. Leaking unlined CCR 
4

surface impoundments are required to either retrofit with a composite or alternative composite 

liner as described in §§257.70(b) and 257.70(c) respectively, or close.

4. EPA Should Provide an Exclusion for Beneficial Use.

Comment: Include an exception for basins and storage pads that are used for the 

temporary storage of CCR that will be then relocated for beneficial reuse or disposal in a landfill. 

Include an exemption for gypsum that is stored for agricultural or construction purposes.

Comment Number: EPA-HQ-RCRA-2009-0640-06865-23

Organization: Constellation Energy

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-08249-1

Organization: Exponent on behalf of Georgia Pacific

Commenter Type: Beneficial User

Comment Number: EPA-HQ-RCRA-2009-0640-08267-1

Organization: United States Gypsum Company (USG)

Commenter Type: Beneficial User

Comment: EPA needs to clarify how CCR is to be regulated if a claim has been made 

that CCR has been beneficially used where the use is a sham.

Comment Number: EPA-HQ-RCRA-2009-0640-08251-20

Organization: Massachusetts Department of Environmental Protection

Commenter Type: State Government

Comment: USWAG also believes that EPA should clarify in the regulatory text that the 

proposed Subtitle D controls do not apply to the beneficial use of CCRs. While this is obviously 

EPA‘s intent, it is not expressly spelled out in the proposed regulatory text.

Comment Number: EPA-HQ-RCRA-2009-0640-10483-55

Organization: Utility Solid Waste Activities Group (USWAG) et al.

Commenter Type: Trade Association

Response: The final rule is clear that the requirements do not apply to beneficial use as 

defined in the final rule. Any use that does not meet the definition of beneficial use in the final 

rule is subject to the requirements of the final rule.

5. CCR Use at Coal Mines.
5

Comment: The preamble to the proposed rule explicitly states: "EPA is also not 

proposing to address the placement of CCRs in mines, or non-minefill uses of CCRs at coal mine 

sites in this action." 75 Fed. Reg. at 35,128 (emphasis added). Yet, on the next page, EPA 

inexplicably drops the phrase "or non-minefill uses" in its discussion of whether the proposed 

rule applies to a particular industry sector and narrows this statement to: "[T]his proposed rule 

does not address the placement of CCRs in minefills." Id. at 35,129 (emphasis added). In fact, 

after the initial explicit statement on applicability of the rule, EPA fails to reference nonminefill

uses ever again. It is imperative that EPA properly convey its decision not to regulate the 

placement of CCRs in coal mines or non-minefill uses of CCRs at coal mine sites throughout all 

portions of the preamble as well as in the regulatory text.

Comment Number: EPA-HQ-RCRA-2009-0640-06529-33

Organization: NiSource Corporate Services

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06726-5

Organization: The North American Coal Corporation

Commenter Type: Other Company

Comment: EPA should provide regulatory certainty to CCRs used in mine placement by 

explicitly exempting CCRs used at coal mine sites from regulation under the proposal, including 

the use of CCRs in surface mine placement. As EPA correctly acknowledges in the preamble, 

the Agency should defer to OSM for development of regulations for these activities.

Comment Number: EPA-HQ-RCRA-2009-0640-08840-4

Organization: Electric Power Generation Association

Commenter Type: Trade Association

Comment Number: EPA-HQ-RCRA-2009-0640-08844-4

Organization: National Mining Association (NMA)

Commenter Type: Trade Association

Comment Number: EPA-HQ-RCRA-2009-0640-09713-13

Organization: Indianapolis Power & Light Company (IPL)

Commenter Type: Electric Utility Company
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Response: In the Scope and purpose section of today’s final rule at §257.50 (h), EPA 

expressly states that the rule does not apply to CCR placement at active or abandoned 

underground or surface coal mines.

Comments and EPA Responses on the Effective Date of the Rule

The effective date of the proposed RCRA subtitle D alternative would be 180 days after 

promulgation of a final rule. Thus owners and operators of CCR landfills and surface 

impoundments would need to meet the proposed minimum federal criteria180 days after 

promulgation of the final rule. Facilities would need to comply with the RCRA subtitle D 

criteria, irrespective of whether or not the states have adopted the standards. For the remaining 

requirements, the compliance dates would be as follows:

 For new CCR landfills and surface impoundments that are placed into service after the 

effective date of the final rule, the location restrictions and design criteria would apply 

the date that such CCR landfills and surface impoundments are placed into service. 

 For existing CCR surface impoundments, the compliance date for the liner requirement is 

five years after the effective date of the final rule. 

 For existing CCR landfills and surface impoundments, the compliance date for the 

groundwater monitoring requirements is one year after the effective date of the final rule. 

 For new CCR landfills and surface impoundments, and lateral expansions of existing 

CCR landfills and surface impoundments, the groundwater monitoring requirement must 

be in place and in compliance with the groundwater monitoring requirements before 

CCRs can be placed in the unit.

Comments and EPA responses regarding effective dates for the location criteria, 

groundwater monitoring, and closure and post-closure care requirements can be found in the 

comments and response document volumes for these topics.

1. 180-Day Effective Date of the Rule.

Comment: Because of the process for promulgating regulations in Kentucky, 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 
7

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.

Comment Number: EPA-HQ-RCRA-2009-0640-06260-20

Organization: Kentucky Department for Environmental Protection

Commenter Type: State Government

Response: EPA would also prefer a full regulatory program that includes permitting and 

financial assurance however, the sections under subtitle D of RCRA that are currently applicable 

to CCR – sections 1008(a), 4004(a), and 4005(a), only authorize the Agency to establish 

minimum national criteria that apply to “facilities.” These provisions do not authorize EPA to 

require that facilities obtain a permit from EPA or a state. Therefore, for a subtitle D rule, the 

Agency has no choice but to design standards under subtitle D that are self-implementing. This 

is discussed in greater detail in Section V. A of the preamble to the final rule.

Comment: The Agency should specify that states must adopt the rule within one year.

Comment Number: EPA-HQ-RCRA-2009-0640-06852-8

Organization: Green Delaware

Commenter Type: Advocacy Group

Comment: The short timeline EPA suggests for implementation of either Subtitle D 

option is a concern. The Agency suggests that the rule “self-implements” 180 days after 

promulgation. Under any scenario, this is an unreasonably short timeline for compliance. It is 

particularly unworkable if EPA truly wants to make states partners in its efforts. EPA should 

give states enough time to adopt rules that will allow them to run the program.

Comment Number: EPA-HQ-RCRA-2009-0640-06820-9

Organization: Western Business Roundtable

Commenter Type: Trade Association

Comment Number: EPA-HQ-RCRA-2009-0640-10017-9

Organization: Salt River Project (SRP)

Commenter Type: Electric Utility Company

Comment: EPA asserts that the effective date of the proposed regulations under its 

Subtitle D approach, if promulgated, will be 180 days from the date EPA promulgates the final 
8

rule. [Footnote 315: 75 Fed. Reg. at 35,210.] According to EPA, this six-month window 

provides states with an opportunity to develop state CCR management plans before the federal 

regulations take effect. EPA can only impose the federal Subtitle D requirements in a state after 

that state has either failed to submit a solid waste management plan for EPA approval or has had 

its plan rejected as inadequate by the Agency. As such, EPA cannot enforce the proposed 

Subtitle D requirements six months after promulgation. Rather, it must set forth a “reasonable” 

timeframe for submission of a revised solid waste management plan based on the new federal 

criteria; only after states fail to submit such plans – or EPA disapproves them – can the Agency 

enforce the federal standards.

Comment Number: EPA-HQ-RCRA-2009-0640-08244-32

Organization: Edison Mission Energy, LLC

Commenter Type: Electric Utility Company

Response: Under Section 4004 of RCRA, minimum national criteria are effective six 

months after publication. Owners and operators of CCR units subject to this rule must be in 

compliance with these minimum criteria by that date. However, implementation timeframes for 

some of the criteria have been set after the effective date of the rule. In some cases the 

timeframes specified are longer than six months because more time is required to implement the 

requirements (e.g., installation of the groundwater monitoring system and establishment of the 

groundwater monitoring program). EPA believes the implementation timeframes provide ample 

time for the owners and operators of CCR units to come into compliance with the final rule.

2. Five Years to Retrofit or Close CCR Surface Impoundments.

Comment: Existing surface impoundments should be required to install liners within 5 

years or shut down.

Comment Number: EPA-HQ-RCRA-2009-0640-06130-2

Organization: Mecklenburg County, North Carolina

Commenter Type: Local Government

Comment: The proposed rule requires existing surface impoundments to be dredged and 

retrofitted with composite liner systems within five years of the effective date of the rule or 

closed in accordance with §257.100. According to §257.100, owners must commence closure 

within 30 days of last receipt of waste, and complete closure within 180 additional days

(approximately 7 months total). It isn't clear whether subsection 257.71(g) requires owners to 
9

complete closure within the five year timeframe or simply begin closure within 5 years and meet 

the timelines in §257.100. No matter how this is interpreted, the timeframes are more stringent 

than those in proposed §268.14 of the Subtitle C rules, which gives owners of existing surface 

impoundments five years to cease accepting waste, and an two additional years to complete 

closure. Please consider revising subsection 257.71(g) to provide the same amount of time for 

closure as in the proposed Subtitle C rules.

Comment Number: EPA-HQ-RCRA-2009-0640-07534-5

Organization: Aquaterra Environmental Solutions, Inc.

Commenter Type: Other Company

Comment: We support the concept of putting a time limit on the continued operation of 

surface impoundments that are not equipped with liners and leachate collection systems.

Comment Number: EPA-HQ-RCRA-2009-0640-06416-53

Organization: Wisconsin Department of Natural Resources (WI DNR) and Public Service 

Commission of Wisconsin (WI PSC)

Commenter Type: State Government

Comment: The proposed rule requires owners of existing surface impoundments to 

dredge the impoundments and retrofit them with composite liner systems within five years of the 

effective date of the rule or close in accordance with §257.100. The language in subsection 

257.71(g) could be interpreted to require owners of existing surface impoundments to complete 

closure within five years of the effective date of the rule, or to simply begin closure by that date 

and adhere to the timelines specified in §257.100, which allows owners 30 days from last receipt 

of waste to commence closure, and 180 additional days to complete closure, a total of about 7 

months. 

Regardless of the interpretation, this is more stringent that the requirements for closure of 

existing surface impoundments located in unstable areas (§257.65). That rule would also require 

owners of existing impoundments to close within five years of the effective date of the rules if 

they cannot make the appropriate demonstrations, but it includes provisions for an extension of 

up to two years to complete closure. From a regulatory standpoint, this is counter- intuitive in 

that an owner of an impoundment located in an unstable area, and presumably unable to show 

the landfill components will not be compromised, would be allowed a time extension for closure 
10

whereas an owner of an impoundment not located in an unstable area would not be allowed an 

extension. It seems that, if anything, the reverse would be more appropriate.

Comment Number: EPA-HQ-RCRA-2009-0640-06517-6

Organization:

Commenter Type: Anonymous

Comment: The Subtitle D co-proposal requires composite liner retrofitting or closure 

within five years. This is not practical because of the logistics and area needed to either move or 

construct new impoundments. Current impoundments are located next to operating plants that 

have limited space because of their proximity and space needed for operations and maintenance. 

Also, five years is less time than the seven years provided under the Subtitle C co-proposal.

Comment Number: EPA-HQ-RCRA-2009-0640-09265-5

Organization: CPS Energy

Commenter Type: Electric Utility Company

Comment: There is no reason to allow the continued use of existing surface 

impoundments for 5 years after the date the rule becomes effective, and then allow two 

additional years to close the surface impoundment. It is well known that leakage from many 

surface impoundments is already contaminating groundwater, polluting surface water, and 

harming biota. Further, the potential for catastrophic failure is far greater during active use than 

after the impoundments are closed. Once an impoundment is properly closed and capped, water 

from the wastes will no longer be impounded and most, if not all, of the precipitation will run 

off. Three years of continued use after the rules are finalized in the Federal Register and 

operators have had due notice, should be more than adequate to implement other options for 

material handling.

Comment Number: EPA-HQ-RCRA-2009-0640-06313-101

Organization: Earthjustice et. al.

Commenter Type: Advocacy Group

Comment: I believe the time frame for the closure of surface impoundments can be 

accomplished within 48 months of the effective date of the promulgated rules. The precedent for 

closure of surface impoundments was set with the interim status on closure of hazardous waste 

surface impoundments in 42 USC 6925(J)(1).
11

Comment Number: EPA-HQ-RCRA-2009-0640-06313-125

Organization: Earthjustice et. al.

Commenter Type: Advocacy Group

Comment: The use of existing landfills that do not have liners that comply with the 

requirements of 264.1306(b)(1) and (2) should be closed. Such closures will both protect Human 

Health and the Environment, but will also decrease the liability for clean-up of those now using 

such unlined facilities. Closure of unlined facilities should be required within two years of the 

effective date of the final rule. To allow for special circumstances, it may be necessary to 

provide the possibility of no more than two 1-year extensions, but such special circumstances, 

such as acquisition of property appropriate for the siting of permitted new facilities, should be 

well defined.

Comment Number: EPA-HQ-RCRA-2009-0640-06313-99

Organization: Earthjustice et. al.

Commenter Type: Advocacy Group

Comment: If EPA does impose a mandatory closure requirement, the effective date for 

implementation of the closure plan and completion of construction should be determined case by 

case, based on best engineering practices. Otherwise, the closure requirement will significantly 

hamper compliance flexibility and may lead to premature unit shut-down, thereby jeopardizing 

electric reliability and driving up the cost of electricity – all in return for little or no 

environmental benefit when compared to closure based upon performance-based standards.

Comment Number: EPA-HQ-RCRA-2009-0640-06398-27

Organization: Duke Energy

Commenter Type: Electric Utility Company

Comment: The Agency should not restrict facilities to a broad generalization of 

implementation time. Each facility should submit a schedule and implementation time, if 

needed. Individual schedules may help overcome site-specific issues more effectively than being 

forced to comply on a different timeline. A facility would not need to comply with regulation 

changes or this timeline if it can demonstrate sound infrastructure, no unacceptable 

environmental impact, and compiles a site-specific risk assessment.
12

Comment Number: EPA-HQ-RCRA-2009-0640-06410-40

Organization:

Commenter Type: Anonymous

Comment: The compliance deadline required by this rule will be unachievable in many 

circumstances. The compliance deadline does not consider the need for the Owner to implement 

an alternative to the existing CCR surface impoundment or existing CCR landfill. As an 

example, many Owners will be converting facilities to dry handling of fly ash in order to phase 

out the existing CCR surface impoundment. Owners will be required to site, design, permit, and 

construct new CCR landfills to provide replacement disposal capacity. The time frame required 

to site, design, permit, and construct a landfill in today’s regulatory environment is at least 5 to 

10 years.

Comment Number: EPA-HQ-RCRA-2009-0640-06424-8

Organization: Garrett & Moore, Inc.

Commenter Type: Other Company

Comment Number: EPA-HQ-RCRA-2009-0640-06832-25

Organization: SCANA Corporation

Commenter Type: Electric Utility Company

Comment: Timelines for closures, retrofits and other requirements are often unrealistic. 

For example, if ash ponds are required to be closed, factors affecting those closures include not 

only the ability to retrofit dry handling and alternative disposal facilities but weather becomes an 

issue also.

Comment Number: EPA-HQ-RCRA-2009-0640-06446-13

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

Commenter Type: Electric Utility Company

Comment: The proposed time tables for actually closing these landfills and surface 

impoundments is totally unrealistic and many facilities be physically incapable of meeting these 

schedules.

Comment Number: EPA-HQ-RCRA-2009-0640-06529-39

Organization: NiSource Corporate Services

Commenter Type: Electric Utility Company
13

Comment Number: EPA-HQ-RCRA-2009-0640-06532-33

Organization: Southern Illinois Power Cooperative

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06833-11

Organization: Dominion Resources Services, Inc.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-09239-65

Organization: Prairie State Generating Company, LLC (PSGC)

Commenter Type: Electric Utility Company

Comment: Closure of existing surface impoundments within 5 years of the effective date 

under a Subtitle D or D prime program may be impossible. Initial investigations indicate that 

just the dewatering of some surface impoundments may take 5 years. Empire District 

recommends that EPA perform additional investigation into this practical implementation issue 

and either provide technical procedures that accelerate the dewatering of these surface 

impoundments or provide closure extension alternatives to allow adequate time to address the 

dewatering issue.

Comment Number: EPA-HQ-RCRA-2009-0640-06533-10

Organization: Empire District Electric Company

Commenter Type: Electric Utility Company

Comment: Compliance with EPA's requirement to close surface impoundments and 

landfills within the proposed timeframe may not be feasible.

Comment Number: EPA-HQ-RCRA-2009-0640-06722-16

Organization: Arkansas Electric Cooperative Corporation (AECC)

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-08220-14

Organization: PowerSouth Energy Cooperative

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-08841-27

Organization: Deseret Generation and Transmission Co-operative

Commenter Type: Electric Utility Company
14

Comment Number: EPA-HQ-RCRA-2009-0640-09427-14

Organization: San Miguel Electric Cooperative, Inc. (San Miguel)

Commenter Type: Electric Utility Company

Comment: EPA has failed to recognize the complexities of closing disposal surface 

impoundments. The five year time frame provided for closure is insufficient.

Comment Number: EPA-HQ-RCRA-2009-0640-06723-20

Organization: West Virginia Department of Environmental Protection (WVDEP)

Commenter Type: State Government

Comment: The Subtitle D option includes an unrealistic timetable for the closure of CCR 

surface impoundments that are unable to meet the proposed design and operating standards. 

Specifically, the Agency proposes to require surface impoundments that cannot meet these 

standards to close within 5 years of the effective date of the final rule. This time period may be 

extended by an additional 2 years if the owner or operator can demonstrate that there exists a 

lack of alternative disposal capacity and the unit poses no immediate threats to human health or 

the environment. We recommend that the Agency avoid establishing a specific time frame by 

which their closure must be completed. Instead, we encourage the Agency to require closure of 

impoundments in accordance with timeframes established in a closure plan approved by the 

appropriate state regulatory agency. An approved closure plan would provide the 

owner/operator with the flexibility to account for the many variables associated with the closure 

of their particular impoundment while establishing a written record of how and when the 

impoundment will be closed.

Comment Number: EPA-HQ-RCRA-2009-0640-06827-10

Organization: Oklahoma Gas and Electric Company (OG&E)

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06833-13

Organization: Dominion Resources Services, Inc.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06863-30

Organization: Avista Corp.

Commenter Type: Electric Utility Company
15

Comment Number: EPA-HQ-RCRA-2009-0640-09358-6

Organization: Interstate Power and Light Company (IPL) and Wisconsin Power and Light 

Company (WPL)

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-10483-48

Organization: Utility Solid Waste Activities Group (USWAG) et al.

Commenter Type: Trade Association

Comment: While existing units may be allowed five years to continue operating, the 

period of time by which closure must be completed once they cease operating. or stop receiving 

CCRs, is simply too short for the majority of CCR disposal units, especially surface 

impoundments.

Comment Number: EPA-HQ-RCRA-2009-0640-06833-12

Organization: Dominion Resources Services, Inc.

Commenter Type: Electric Utility Company

Comment: Facilities that cannot meet design standards must verify the facility is 

protective and can be operated safely. Should a facility not provide the verification necessary, 

the MPCA agrees closure within five years is appropriate. This would allow the facility and its 

customers adequate time to research other disposal options. The MPCA does not see this as a 

major concern; most disposal facilities in the state meet or exceed the proposed location 

standards.

Comment Number: EPA-HQ-RCRA-2009-0640-06838-21

Organization: Minnesota Pollution Control Agency (MPCA)

Commenter Type: State Government

Comment: Under Subtitle D, those impoundments that are located in a stable area would 

be required to be dredged and have installed a composite liner and leachate collection system 

within five years or be closed [Proposed Rule 25771 (g)] with apparently no extension available 

Then, proposed rule 257.100 U)&(k) would require that closure activities begin within 30 days 

after the date on which the surface impoundment receives the final receipt of CCRs and that 

closure be completed within 180 days following the beginning of closure (210 days total to 

complete closure). It should be pointed out that at some locations, it will take at least four years 

from the time the new CCR rule becomes effective to accomplish the wet-to-dry conversion and 
16

to accomplish the switch to dry, which means that wet ashes would be received as late as the end 

of Year 4.

Comment Number: EPA-HQ-RCRA-2009-0640-06851-10

Organization: American Electric Power (AEP)

Commenter Type: Electric Utility Company

Comment: The implementation schedule for impoundments should be specific to the type 

of impoundment. For example an excavated basin with no embankment stability concerns could 

be closed or redesigned in a shorter schedule than a basin which is created by construction of a 

dam across a valley. Many basins will require time to drain and consolidate in a controlled 

manner to allow access for construction activities associated with conversion to a landfill or 

closure. Forced rapid closure could result in increased post-closure maintenance and excess 

construction costs associated with earthwork on materials with marginal bearing capacity. 

Conversion schedules should be created by the owner and registered professional engineer based 

on sound design and construction practices. 

Comment Number: EPA-HQ-RCRA-2009-0640-06865-20

Organization: Constellation Energy

Commenter Type: Electric Utility Company

Comment: EPA should not establish hard deadlines for mandatory closure of CCR 

disposal units unless the agency can establish a clear and unencumbered path forward to provide 

for timely permitting and construction of alternate disposal capacity within that time frame.

Comment Number: EPA-HQ-RCRA-2009-0640-08253-30

Organization: Xcel Energy

Commenter Type: Electric Utility Company

Comment: EPA’s Subtitle D proposal gives operators a reasonable time period to comply 

with the new requirements for existing surface impoundments. EPA should not acquiesce to 

suggestions that such a timeline cannot be met or that the Subtitle D Prime alternative is 

preferable. As detailed infra, Exelon believes that the Subtitle D Prime alternative to the primary 

Subtitle D proposal will risk indefinite circumvention of the goal of reducing the risk of damage 

associated with legacy impoundments. Furthermore, although the time needed for site selection, 

acquisition, and permitting for a landfill or surface impoundment will vary state-by-state, 

Exelon’ s internal view is that site selection can take one to three years (if land acquisition is 
17

required), the permitting process generally takes an average of two to three years, and 

construction typically requires twelve to eighteen months. It is reasonable, then, for EPA to 

allow operators a time period from five to seven years to retrofit or close impoundments under its 

primary Subtitle D proposal, since replacement disposal capacity can be developed within such a 

time frame.

Comment Number: EPA-HQ-RCRA-2009-0640-09281-6

Organization: Exelon Power

Commenter Type: Electric Utility Company

Comment: Previous experience has shown that the time required for reviewing a permit 

application for a new disposal facility meeting the requirements of the current Subtitle D 

regulations is approximately three years. In addition to permit review, the timeline for a new 

disposal facility also includes two years for land acquisition, and at least one construction season. 

The proposed Subtitle D option would have tasks similar to those of the Subtitle C option such as 

design, purchase, and installation of new ash handling equipment, if required, as well as design, 

permitting modification, and closure of existing ponds. Note that the closure of the existing 

facility cannot begin until the new ash handling systems are fully functional. All of these steps 

in the Subtitle D process add up to about eight years, again more than the five to seven years 

envisioned by EPA even if there is no public opposition. While the time frame to comply under 

Subtitle D is likely to be less than under Subtitle C, either time frame (impoundment closure, 

landfill permitting, construction, etc.) is still longer than the five to seven years in the proposed 

regulation. Furthermore, the sheer number of new facilities needing to comply with the proposed 

rules on a similar time frame will lead to additional processing delays. In addition, TVA expects 

the conversion program from wet ash and gypsum storage to dry storage to take about ten years 

because of the need for new equipment and additional storage and disposal facilities. This 

schedule may be disrupted to a significant extent if the new effluent guidelines now under 

consideration come into effect.

Comment Number: EPA-HQ-RCRA-2009-0640-09536-6

Organization: Tennessee Valley Authority

Commenter Type: Electric Utility Company

Comment: EPA should not establish a specific time frame for closure but allow closure 

under a state approved program that provides an appropriate amount of time to effectively close 
18

the unit. As a practical matter, it is nearly impossible to dewater, dredge, and backfill a CCR 

surface impoundment under a clean closure process within five years.

Comment Number: EPA-HQ-RCRA-2009-0640-10017-10

Organization: Salt River Project (SRP)

Commenter Type: Electric Utility Company

Response: In response to public comments to the proposed rule and the NODA, the final 

rule provides CCR surface impoundments five years to complete closure and provides CCR 

landfills six months to complete closure. If the owner or operator of a CCR surface 

impoundment can demonstrate that it is not feasible to complete closure within this five year 

period, the final rule includes procedures to obtain extensions of time, provided the additional 

time that is needed is due to factors beyond the facility’s control. In order to obtain additional 

time, the owner or operator of the CCR unit is required to prepare a written demonstration that 

identifies the basis for an extension. Such factors include: (1) Complications stemming from the 

climate and weather, such as unusual amounts of precipitation or a significantly shortened 

construction season; (2) Time required to dewater a surface impoundment due to the volume of 

CCR contained in the CCR unit or the characteristics of the CCR in the unit; (3) The geology and 

terrain surrounding the CCR unit will affect the amount of material needed to close the CCR 

unit; or (4) Time required or delays caused by the need to obtain State permits and/or to comply 

with other State requirements.

The final rule limits the amount of time that can be secured, and the amount of time 

varies based on the size of the closing CCR unit and the type of CCR unit. For CCR surface 

impoundments that are 40 acres or smaller, the maximum time extension to complete closure is 

limited to no longer than two years. For CCR surface impoundments larger than 40 acres, the 

owner or operator may extend the time frame to complete closure of the CCR unit multiple 

times, in two-year increments. For each two-year extension sought, the owner or operator must 

substantiate the factual circumstances demonstrating the need for the extension. No more than a 

total of five two-year extensions may be obtained for any CCR surface impoundment. 

Comments and EPA Responses on the Applicability of the Rule

In the proposed rule, EPA proposed general provisions to identify those solid waste 

disposal units subject to the proposed RCRA subpart D requirements (i.e., CCR landfills and 
19

CCR surface impoundments as defined under proposed 257.40(b)). The applicability section 

also identified three of the existing subpart A criteria that would continue to apply to these 

facilities: 257.3-1 Floodplains, 257.3-2 Endangered Species, and 257.3-3 Surface Water. 

Consistent with RCRA 4004(c), EPA specified an effective date of 180 days after publication of 

the final rule. The Agency received numerous comments on this part of the rule. In general, 

commenters were concerned with three specific areas as they pertained to applicability. First, 

commenters requested additional clarification as to the specific sources of CCR that would be 

subject to the requirements of the rule, i.e., CCRs generated by the electric utilities and 

independent power producers. Second, the applicability of the proposed regulations to municipal 

solid waste landfills (MSWLFs) disposing of CCRs and third, the definition and status of 

“uniquely associated wastes.” EPA also received comments that a major shortcoming of the 

subtitle D proposal was that the rule did not address “inactive” CCR disposal units. The 

responses to these comments are discussed below.

1. EPA Should Clarify the Applicability of the Rule.

a. Definitions of CCR Landfill and CCR Surface Impoundment Fail to Effectively Define

Applicability of the Rule - Definitions Could Include Non-Utility Boilers.

Comment: The Supplementary Information, section A, on page 35129 of the June 21, 

2010 Federal Register says "CCRs from non-utility boilers burning coal are not included within 

today's proposed rule." The language for the proposed subtitle C section 261 .50 (b)(4) says 

"[This listing does not apply to coal combustion residuals that are:] Generated by facilities 

outside the electric power sector (i .e ., not included in NAICS code 22112) ." Similar language 

is not in the wording of the proposed subpart D section 257.40 (a) Applicability, or in any other 

sections of the proposed subpart D. If the subtitle D option proposed in the June 21, 2010 

Federal Register is enacted with the language in the proposed rule, CCRs from non-utility boilers 

burning coal will be included, contrary to the stated position of the Environmental Protection 

Agency (EPA) in the preamble. 

Comment Number: EPA-HQ-RCRA-2009-0640-05751-1

Organization: Savannah River Nuclear Solutions, LLC (SRNS)

Commenter Type: Other Company
20

Comment Number: EPA-HQ-RCRA-2009-0640-06275-15

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

(MSU)

Commenter Type: Electric Utility Company

Comment: EPA must revise the language of the proposed section 257.40 to reflect the 

wording in the proposed section 261.50 (b)(4) in order to clearly exclude CCRs from non-utility 

boilers burning coal from regulation.

Comment Number: EPA-HQ-RCRA-2009-0640-05751-1

Organization: Savannah River Nuclear Solutions, LLC (SRNS)

Commenter Type: Other Company

Comment Number: EPA-HQ-RCRA-2009-0640-06398-23

Organization: Duke Energy

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06529-33

Organization: NiSource Corporate Services

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06541-10

Organization: Large Public Power Council (LPPC)

Commenter Type: Trade Association

Comment: The Subtitle D proposal appears to capture CCRs generated from all sources, 

eg., "requirements of this subpart apply to owners or operators of CCR landfills and CCR surface 

impoundments," while the Subtitle C proposal captures only CCRs from the electric power 

sector. What is the rationale for treating the waste differently in the two proposals?

Comment Number: EPA-HQ-RCRA-2009-0640-06280-21

Organization: South Carolina Department of Health and Environmental Control

Commenter Type: State Government

Comment: The proposed applicability section in 257.40, RCRA subtitle D, refers to 

“CCR landfills,” which in turn refers to “CCR,” which are defined in terms so general that nonutility CCR disposal facilities seem to be included, versus the more specific reference in section

261.4(4), RCRA subtitle C, to CCR from combustion of coal primarily for generation of electric 

power or combined heat and electric power by the electric power sector. As proposed, the rule is 
21

trying to do too much in the definition for effectiveness, and banning non-landfill non-contained 

filling needs to be dealt with explicitly in the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06416-48

Organization: Wisconsin Department of Natural Resources (WI DNR) and Public Service 

Commission of Wisconsin (WI PSC)

Commenter Type: State Government

Comment: The proposed Subtitle D option appears to apply to all coal ash facilities. 

Does EPA intend to include non-power sector coal ash facilities in the proposed Subtitle D 

option?

Comment Number: EPA-HQ-RCRA-2009-0640-06860-11

Organization: South Carolina Chamber of Commerce, Environmental Technical Committee

Commenter Type: Trade Association

Comment: EPA states that it is not proposing to revise the Bevill exclusion for CCRs 

generated at facilities that are not part of the electric power sector and which use coal as the fuel 

in non-utility boilers, such as manufacturing facilities, universities, and hospitals (see 75 FR at 

35165). However, the definition of CCR landfill and CCR surface impoundment, as well as the 

applicability language proposed at §257.40(a), is sufficiently broad and ambiguous to apply the 

subtitle D option to CCR waste generated at any facility, regardless of its NAICS code.

Proposed 40 CFR 257.40 indicates a broad scope of applicability for the Subtitle D and 

D’ options. For the same reasons as articulated by EPA in its Subtitle C option, the applicability 

of the Subtitle D and D’ options should be limited in scope to NAICS code 221112 activities 

only.

Comment Number: EPA-HQ-RCRA-2009-0640-06529-33

Organization: NiSource Corporate Services

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06532-29

Organization: Southern Illinois Power Cooperative

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06880-9

Organization: Eastman Chemical Company (Eastman)

Commenter Type: Other Company
22

Comment Number: EPA-HQ-RCRA-2009-0640-06915-1

Organization: Alcoa Inc.

Commenter Type: Other Company

Comment: EPA has inadvertently failed to include the regulatory parameters of the 

Subtitle D program into the regulatory text making clear that, like the Subtitle C option, the 

Subtitle D controls apply only to electric-only and combined-heat and-power plants whose 

primary business is to sell electricity, or electricity and heat, to the public. 

Comment Number: EPA-HQ-RCRA-2009-0640-10483-55

Organization: Utility Solid Waste Activities Group (USWAG) et al.

Commenter Type: Trade Association

Response: First, we would note that the language in 261.4(b)(4) does not limit the 

exclusion to CCRs generated from the electric power sector, but applies to all fly ash, bottom ash 

wastes, slag waste, and flue gas emission control wastes generated primarily from the 

combustion of coal or other fossil fuels. Nevertheless, the Agency wants to make sure that the 

regulations are clear as to which wastes are subject to today’s regulations. Therefore, to ensure 

that there is no misunderstanding, §257.50 of the final rule specifies that the requirements apply 

to the disposal of CCRs generated from the combustion of coal by electric utilities and 

independent power producers that fall under the North American Industry Classification System 

(NAICS) code 221112. The final rule also specifies that the requirements are not applicable to 

CCRs generated at facilities that are not part of the electric power sector which use coal as the 

fuel in non-utility boilers, such as manufacturing facilities, universities, and hospitals. 

b. Surface Impoundments that are not designed to hold an accumulation of CCRs.

Comment: EPA and state personnel may characterize impoundments that are not 

designed to hold an accumulation of CCRs, but that contain incidental amounts of CCRs, as 

CCR surface impoundments. Many coal-fired power plants rely on a series of surface 

impoundments to settle solids, clarify and cool wastewater prior to recycle or discharge, manage 

intake water, and manage stormwater. In most cases, these impoundments are not designed to 

hold an accumulation of CCRs, they are designed as waste water treatment facilities or water 

accumulation facilities (e.g., intake-water basins). However, it is not uncommon for de minimis 

amounts of CCRs to enter these impoundments either through surface deposition, surface runoff 

or from discharge of effluent from upstream settling impoundments. If these impoundments 
23

were subject to the proposal, then many of them would be required to close. These 

impoundments are integral to and necessary for continued operation of most generating facilities, 

and the operation of them plays a critical role in maintaining compliance with various Clean 

Water Act requirements. Requiring closure of these impoundments has the unintended 

consequence of requiring closure of several electric generating facilities because many facilities 

cannot operate without these impoundments.

Comment Number: EPA-HQ-RCRA-2009-0640-06532-27

Organization: Southern Illinois Power Cooperative

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-09239-52

Organization: Prairie State Generating Company, LLC (PSGC)

Commenter Type: Electric Utility Company

Comment: The final rule should clarify that a wastewater treatment pond that is not used 

for wet ash storage is not covered under this rule due to an occasional or incidental spill of ash 

entering the wastewater system.

Comment Number: EPA-HQ-RCRA-2009-0640-07048-10

Organization: TransAlta Centralia Generation

Commenter Type: Electric Utility Company

Comment: In recognition of the low risk of release to groundwater posed by these 

impoundments, their critical role in continuing operations and compliance with various Clean 

Water Act requirements, EPA should develop an exemption for those impoundments that are not

specifically designed to hold an accumulation of CCRs, even though they may contain de 

minimis amounts of CCRs (e.g., less than 10% of their volume). In the alternative, EPA should 

develop a de minimis exemption for wastewaters and effluent contained in and discharging from 

impoundments, especially those which are not specifically designed to hold an accumulation of 

CCRs and do not routinely receive CCRs.

Comment Number: EPA-HQ-RCRA-2009-0640-06529-31

Organization: NiSource Corporate Services

Commenter Type: Electric Utility Company
24

Comment Number: EPA-HQ-RCRA-2009-0640-09239-62

Organization: Prairie State Generating Company, LLC (PSGC)

Commenter Type: Electric Utility Company

Response: While the intent was to cover surface impoundments that are designed 

specifically for the accumulation of CCRs, the definition gave examples of impoundments that 

function for purposes other than the accumulation of CCRs; e.g., settling and aeration pits, 

ponds, and lagoons. Therefore, EPA is finalizing a definition that clarifies its intent to only 

regulate surface impoundments which holds an accumulation of CCRs and liquids for the 

purpose of treatment, storage, or disposal. The Agency believes the final definition clarifies that 

CCR surface impoundments do not include overfills, cooling water ponds, process water ponds, 

wastewater treatment ponds, stormwater holding ponds, aeration ponds, or polishing ponds. (See 

also the Response to Comments in Section VI. C. 3. B of the preamble to the final rule.)

c. EPA Should Differentiate Between Temporary and Permanent Surface Impoundments.

Comment: It is important that EPA differentiate between temporary and permanent 

surface impoundments in any final standards so that facilities which require and rely on shortterm processing and storage before moving CCRs off-site for beneficial use or permanent 

disposal retain an ability to use them. Moreover, temporary surface impoundments should not be 

subject to the same level of regulation as permanent impoundments because their use is 

fundamentally different from permanent disposal facilities.

Comment Number: EPA-HQ-RCRA-2009-0640-08244-34

Organization: Edison Mission Energy, LLC

Commenter Type: Electric Utility Company

Response: EPA disagrees that impoundments used for “short-term processing and 

storage” should not be required to comply with all of the technical criteria applicable to CCR 

surface impoundments. By “short-term,” the commenter means that some portion of the CCRs 

are removed from the unit; however, in EPA’s experience these units are never completely 

dredged free of CCRs. But however much is present at any given time, over the lifetime of these 

“temporary” units, large quantities of CCRs impounded with water under a hydraulic head will 

be managed for extended periods of time. This gives rise to the conditions that both promote the 

leaching of contaminants from the CCR and are responsible for the static and dynamic loadings 

that create the potential for structural instability. These units therefore pose the same risks of 
25

releases due to structural instability and of leachate contaminating ground or surface water as the 

units in which CCRs are “permanently” disposed. 

d. CCR Generated Primarily From the Combustion of Fossil Fuels Other Than Coal. 

Comment: The proposed rule implies, rather than states, that utility combustors that use 

exclusively use biofuels, RDF, TDR, chipped wood, post-consumer waste wood, C&D, etc., are 

not subject to the proposed rule. This also implies that utility combustors that burn a fuel mix of 

coal and other fuels are subject to the proposed rule. Explicit clarification is needed in the final 

rules. 

Comment Number: EPA-HQ-RCRA-2009-0640-06416-27

Organization1:Wisconsin Department of Natural Resources (WI DNR) and Public Service 

Commission of Wisconsin (WI PSC)

Commenter Type: State Government

Comment: Under § 257.40(b) of the proposed subtitle D regulations, “Coal Combustion 

Residuals” (CCRs) means fly ash, bottom ash, boiler slag and flue gas desulfurization materials.” 

Sections 264.1301 and 265.1301 of the proposed subtitle C regulations have the same definition 

(with the addition of the phrase “destined for disposal” at the end). But while §261.4(b)(iii) of 

the proposed subtitle C regulations would explicitly exclude “fly ash, bottom ash, boiler slag and 

flue gas emission control wastes, generated primarily from the combustion of fossil fuels other 

than coal, for the purpose of generating electricity,” there is no similar exclusion under the 

proposed subtitle D regulations. EPA must clarify that such residual materials “generated 

primarily from the combustion of fossil fuels other than coal” are outside the scope of “CCRs” 

under subtitle D.

Comment Number: EPA-HQ-RCRA-2009-0640-06541-10

Organization: Large Public Power Council (LPPC)

Commenter Type: Trade Association

Response: We agree with the commenters that the final rule should be clear as to which 

wastes are subject to today’s regulation. Therefore, §257.50 of the final rule specifies that the 

requirements do not apply to fly ash, bottom ash, boiler slag and flue gas emission control 

wastes, generated primarily from the combustion of fossil fuels other than coal, for the purpose 

of generating electricity unless the fuel is a mixture of more than fifty percent (50%) coal and 

other fuel(s). In this case, the wastes generated by the electric power sector would be subject to 
26

today’s CCR regulations. However, as discussed in the next response below, inactive CCR 

surface impoundments at electric utilities or independent power producers that continue to 

produce electricity and maintain CCR disposal units would still be subject to the requirements of 

today’s final rule, even if they no longer continue to burn coal and generate CCR wastes.

2. Subtitle D Proposal Does Not Apply to Inactive CCR Units.

Comment: Groundwater contamination at CCR disposal sites can continue for many 

years without significant natural attenuation, and this characteristic of CCR must be considered 

when regulating its disposal. A major weakness of the subtitle D option is that it applies only to 

active disposal sites and doesn’t address contamination that may be occurring from older 

disposal sites at the same facility leaving a huge loophole for old landfills and waste ponds. 

These old unmonitored units are the most likely units to be leaking. Subtitle C ensures that the 

facility operator is responsible for addressing contamination from inactive units as well. 

Comment Number: EPA-HQ-RCRA-2009-0640-06314-22

Organization: Earthjustice et. al. 

Commenter Type: Advocacy Group

Response: EPA agrees that inactive CCR surface impoundments that have not been 

properly closed warrant regulatory oversight. And in fact the commenter has misunderstood 

EPA's proposal. Under the subtitle C option, EPA discussed at length its proposal to require that 

inactive units either complete closure prior to the effective date of the rule, or be subject to all of 

the rule’s technical requirements. See 75 Fed. Reg. 35,177. In the section of the preamble 

discussing the subtitle D option, EPA did not expressly highlight the issue, but generally 

explained that EPA’s approach to developing the proposed subtitle D requirements for surface 

impoundments (which are not addressed by the part 258 regulations that served as the model for 

the proposed landfill requirements) was to seek to be consistent with the technical requirements 

developed under the subtitle C option. See, Id. at 35,193 (“In addition, EPA considered that 

many of the technical requirements that EPA developed to specifically address the risks from the 

disposal of CCRs as part of the subtitle C alternative would be equally justified under a RCRA 

subtitle D regime.... The factual record—i.e., the risk analysis and the damage cases—supporting 

such requirements is the same, irrespective of the statutory authority under which the Agency is 

operating. Thus several of the provisions EPA is proposing under RCRA subtitle D either 
27

correspond to the provisions EPA is proposing to establish for RCRA subtitle C requirement. 

These provisions include the following regulatory provisions specific to CCRs that EPA is 

proposing to establish: Scope and applicability (i.e., who will be subject to the rule 

criteria/requirements) ...”). EPA did not believe it to be necessary to repeat the discussion from 

the earlier section of the preamble, in part because, in contrast to subtitle C, a decision to include

all existing units within the scope of the regulation would not have revised long-held EPA 

interpretations. 

Consequently, EPA is requiring in the final rule that certain inactive CCR surface 

impoundments at active electric utilities or independent power producers, regardless of the fuel 

used to produce electricity; i.e., surface impoundments at any active electric utility or 

independent power producer that has ceased receiving CCR prior to the effective date of the 

regulation, must meet the applicable requirements in today’s regulation, such as establishing a 

groundwater monitoring program in accordance with §257.91 of the final rule. Additionally, 

inactive CCR surface impoundments that have been determined to be releasing contaminants 

from CCR that exceed a groundwater protection standard, must complete corrective action in 

accordance with §257.98, and either retrofit with a composite liner, or close in accordance with 

the closure requirements at §257.100, as discussed in section VIII. 7 of today’s preamble. See 

section VIII. B. 2 below for additional details on the scope of inactive disposal units subject to 

today’s rule and those that are not subject to today’s rule. 

3. Landfills Closed Before the Effective Date of the Rule and Are Then Excavated After the 

Effective Date of the Rule Are Not Subject to the Rule.

Comment: If the goal is to regulate CCR landfills closed before the rule is effective, but 

excavate after the rule is effective, this should be dealt with in the applicability section of the 

rule, not in definitions section. 

Comment Number: EPA-HQ-RCRA-2009-0640-06416-48

Organization: Wisconsin Department of Natural Resources (WI DNR) and Public Service 

Commission of Wisconsin (WI PSC)

Commenter Type: State Government

Response: It was not the Agency’s intention to subject to today’s regulations closed or 

inactive CCR landfills that are later excavated to remove CCR or to recover CCR for beneficial 
28

use. The sentence “Sites that are excavated so that more coal ash can be used as fill are also 

considered CCR landfills” was intended to cover large scale fill operations that do not meet the 

definition of CCR fill operations and, therefore, are not beneficial use, but disposal units. 

Additionally, the scope and purpose section of the final rule (§257.50(d)) makes clear that the 

rule does not apply to closed or inactive CCR landfills that have ceased receiving CCR before 

the effective date of the rule.

4. Municipal Solid Waste (MSW) Landfills Accepting CCR.

See the section below “Comments and EPA Responses on Off-Site Disposal.”

5. Authorize States with Equivalent Regulatory Programs.

Comment: 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.

Comment Number: EPA-HQ-RCRA-2009-0640-06280-18

Organization: South Carolina Department of Health and Environmental Control

Commenter Type: State Government

Response: EPA agrees that it would be preferable to establish a program that requires 

facilities to obtain a permit and EPA has not “chosen” to design standards under subtitle D that 

are self-implementing. Rather the sections of RCRA that are currently applicable to CCR –

sections 1008(a), 4004(a), and 4005(a), only authorize the Agency to establish minimum national 

criteria that apply to “facilities.” The fact that section 4004(a) does not contain any provision 

that either expressly requires a permit to manage waste, such as in section 3005, or that requires 

states to adopt a permit program, such as in section 4004(c)(1), provides strong evidence that 

Congress did not authorize EPA to impose such a requirement on facilities managing solid 

waste. Therefore, the Agency has no recourse but to develop a self-implementing rule under 

Subtitle D of RCRA.
29

As to the applicability of state regulations, section 257.52(a) (Applicability of other 

regulations the final rule) clearly states that compliance with the requirements of this subpart 

does not affect the need for the owner or operator of a CCR landfill, CCR surface impoundment, 

or lateral expansion of a CCR landfill or CCR surface impoundment to comply with all other 

applicable federal, state, tribal, or local laws or other requirements.

6. CCR Use at Coal Mines.

Comment: The preamble to the proposed rule explicitly states: "EPA is also not 

proposing to address the placement of CCRs in mines, or non-minefill uses of CCRs at coal mine 

sites in this action." 75 Fed. Reg. at 35,128 (emphasis added). Yet, on the next page, EPA 

inexplicably drops the phrase "or non-minefill uses" in its discussion of whether the proposed 

rule applies to a particular industry sector and narrows this statement to: "[T]his proposed rule 

does not address the placement of CCRs in minefills." Id. at 35,129 (emphasis added). In fact, 

after the initial explicit statement on applicability of the rule, EPA fails to reference nonminefill 

uses ever again. It is imperative that EPA properly convey its decision not to regulate the 

placement of CCRs in coal mines or non-minefill uses of CCRs at coal mine sites throughout all 

portions of the preamble as well as in the regulatory text.

Comment Number: EPA-HQ-RCRA-2009-0640-06529-33

Organization: NiSource Corporate Services

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06726-5

Organization: The North American Coal Corporation

Commenter Type: Other Company

Comment: EPA should provide regulatory certainty to CCRs used in mine placement by 

explicitly exempting CCRs used at coal mine sites from regulation under the proposal, including 

the use of CCRs in surface mine placement. As EPA correctly acknowledges in the preamble, 

the Agency should defer to OSM for development of regulations for these activities.

Comment Number: EPA-HQ-RCRA-2009-0640-08840-4

Organization: Electric Power Generation Association

Commenter Type: Trade Association
30

Comment Number: EPA-HQ-RCRA-2009-0640-08844-4

Organization: National Mining Association (NMA)

Commenter Type: Trade Association

Comment Number: EPA-HQ-RCRA-2009-0640-09713-13

Organization: Indianapolis Power & Light Company (IPL)

Commenter Type: Electric Utility Company

Response: In the Scope and purpose section of today’s final rule at §257.50 (h), EPA 

expressly states that the rule does not apply to CCR placement at active or abandoned 

underground or surface coal mines.

Comments and EPA Responses on Off-Site Disposal

Municipal Solid Waste (MSW) Landfills Accepting CCR.

Comments on off-site disposal of CCRs focused on the applicability of the rule to 

municipal solid waste (MSW) landfills accepting CCR. The vast majority of commenters on this 

issue requested that EPA clarify that permitted MSW landfills, receiving CCR as daily cover or 

for disposal were not covered by the rule. As commenters noted, while most CCRs are currently 

disposed of at electric utility owned CCR disposal sites, there is no prohibition against disposing 

of CCRs in state-permitted MSW landfills. However, many commenters interpreted the 

proposed CCR subtitle D regulations to apply to a state permitted MSW landfill disposing of 

CCRs, which as a consequence would be subject MSW landfills to the additional burden of, 

among other things, posting documentation to a website and having a professional engineer 

review certification.

Comment: CCRs accepted in bulk are best handled in a dedicated monofill. Recently in 

Virginia, we have been able to obtain timely permitting of a dedicated monofill for disposal of 

larger volumes of CCRs within the property and pursuant to the permit of an MSW landfill. We 

are working with customers on additional potential monofill projects. The existing permitting 

procedures can handle evaluation of the design and operation of a monofill unit. Monitoring of 

potential groundwater impacts is already underway. Close oversight, public participation and 

enforcement of standards are assured because the facility is subject to state Subtitle D permitting 

procedures. If evaluated for waste compatibility and placement, CCRs can readily be handled in 

permitted MSW landfills. EPA should clarify this is the case. It would also make sense to 
31

require that MSW landfills receiving CCRs after the effective date of the rule do so pursuant to a 

plan in the facility operating record. A CCR acceptance plan would assure the landfill knows the 

physical and chemical characteristics of the waste received and handles it with the additional 

precautions necessary to avoid dust, maintain structural integrity, and avoid compromising the 

gas and leachate collection systems of the landfill. Receipt of CCRs at facilities with CCR 

acceptance plans under a RCRA Subtitle D permit would follow the terms and procedures of the 

permit, not of the CCR rule (if, for example, EPA in its final rule adopts the independent review 

certification instead of a permit system, the MSW landfill permit would control, and no 

additional certification would be required). EPA in its notice repeatedly acknowledges the 

protections provided by the RCRA Subtitle D program for MSW landfills; it should seek in its 

final rule to encourage the controlled management of CCRs in permitted MSW facilities.

Comment Number: EPA-HQ-RCRA-2009-0640-06400-5 & 16

Organization: Waste Management (WM)

Commenter Type: Other Company

Comment: EPA has indicated that it modeled the Subtitle D proposal after the Part 258 

rules and determined that such an approach was sufficiently protective of human health and the 

environment. Therefore, EPA should develop an exclusion for CCRs being disposed in landfills 

permitted under Part 258. This will prevent the imposition of additional duplicative 

requirements on these facilities and should ensure that when existing CCR surface 

impoundments are closed under the proposal, ample disposal capacity exists. Absent this 

exemption, these landfills would likely not accept CCRs and a shortfall in disposal capacity is 

expected as CCR surface impoundments are closed. EPA’s belief that all units currently 

receiving CCRs will continue to receive them is not backed by any data and we believe it is not 

correct. At a minimum the universe of CCR landfills will decrease and the use of off-site 

landfills will increase when the large volumes of CCRs currently stored in impoundments are 

removed so they can be lined. Exclusions like this one help address disposal capacity shortages.

Comment Number: EPA-HQ-RCRA-2009-0640-06529-32

Organization: NiSource Corporate Services

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06532-28

Organization: Southern Illinois Power Cooperative
32

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-09239-53

Organization: Prairie State Generating Company, LLC (PSGC)

Commenter Type: Electric Utility Company

Comment: NSWMA agrees with EPA that the RCRA part 258 criteria “represent a 

reasonable balance between ensuring the protection of human health and the environment from 

the risks of these wastes and the practical realities of facilities’ ability to implement the criteria.” 

However, NSWMA suggests that the regulation of CCR should not only include criteria under 

RCRA part 257, but should also allow CCR to be managed in municipal solid waste (MSW) 

landfills under RCRA part 258 that are more protective (e.g., financial assurance) than the 

proposed RCRA part 257 criteria. 

EPA’s proposed rule appears to believe that CCR are only disposed of in on-site facilities 

or off-site monofills. However, there are a number of MSW landfills that have and continue to 

accept CCR. There are not data to show that CCR currently disposed of in MSW landfills in 

accordance with RCRA part 258 has affected the landfill’s leachate or treatment. Also, a number 

of MSW landfills use CCR as cover (i.e., daily or intermediate cover). The beneficial reuse of 

CCR as cover prevents MSW landfills from purchasing soil or alternate covers (e.g., foams, 

tarps) and provides environmentally protective disposal. The amount of CCR disposed of in 

RCRA part 258 landfills is small compared to the amount of MSW disposed of and the MSW 

landfill criteria were developed by EPA to be protective knowing that they would accept wastes 

other than MSW.

Comment Number: EPA-HQ-RCRA-2009-0640-06825-5

Organization: National Solid Wastes Management Association (NSWMA)

Commenter Type: Trade Association

Comment: EPA should clarify this statement in the final rule and indicate that municipal 

solid waste landfills in compliance with the 40CFR Part 258 requirements in an approved state 

may receive off-site CCR wastes for disposal. There are a number of municipal solid waste 

landfills in Nebraska that have taken advantage of the additional flexibility in design and ground 

water monitoring afforded to them under 40CFR Part 258. If EPA limits the off-site disposal to 

facilities that meet the minimum standards that EPA is proposing in this proposed rule then those 

municipal solid waste landfills that are utilizing alternate designs or ground water monitoring 
33

would be excluded from receiving CCRs. In doing so the capacity for managing CCRs in 

Nebraska would unnecessarily be decreased.

Comment Number: EPA-HQ-RCRA-2009-0640-07533-41

Organization: Nebraska Department of Environmental Quality (NDEQ)

Commenter Type: State Government

Comment: Although EPA does not expressly state so in the preamble to the CCR Rule, 

EPA appears to have limited the scope of its assessment and rulemaking to that of mono-filled 

CCR disposal sites (primarily utility owned). The preamble to the CCR Rule makes no mention 

of co-disposal sites that dispose of MSW (or construction and demolition waste) and CCR 

materials in the same unit. In contrast, EPA acknowledges in the RIA that 149 commercial 

disposal options are utilized, some of which are likely to be MSW sites. Many Subtitle D MSW 

facilities may have taken, or are taking, CCR materials in significant quantities. EPA needs to 

establish better definition of the applicability of these rules to MSW sites.

Comment Number: EPA-HQ-RCRA-2009-0640-07797-6

Organization: Granger III and Associates, LLC (Granger)

Commenter Type: Beneficial User

Comment: By developing a rule package that leans heavily toward CCR-only facilities, 

EPA inadvertently created inconsistencies with existing (Michigan and potentially other states) 

Subtitle D non-utility, non-CCR facilities. While some state requirements may be (and are for 

Michigan) more stringent, the creation of CCR-specific Subtitle D landfill regulations will 

impose a dual and overlapping regulatory program on landfills that dispose of both MSW and 

CCR materials. In many cases, these overlapping regulations are redundant and inconsistent.

Comment Number: EPA-HQ-RCRA-2009-0640-07797-10

Organization: Granger III and Associates, LLC (Granger)

Commenter Type: Beneficial User

Comment: EPA needs to clarify that the CCR regulations do not apply to a state 

permitted MSW landfill that has previously accepted or may accept CCRs. While most CCRs

are currently disposed of at electric utility owned CCR disposal sites, there is no prohibition 

against CCRs being disposed of in state permitted MSW landfills. A reading of the current CCR 

regulations under the RCRA subtitle D approach would require that a state permitted MSW 

landfill that has previously disposed or may dispose of any quantity of CCRs would be fully 
34

subject to duplicative requirements with the additional burden of posting documentation on a 

website, having a professional engineer review certification, etc. EPA should facilitate this 

disposal option by clarifying that the proposed CCR regulations are not applicable if the CCR is 

disposed of in state permitted MSW landfills. This would also provide additional flexibility with 

any interim CCR disposal capacity needs as utilities seek to close, upgrade, or develop their own 

compliant CCR disposal sites. 

Comment Number: EPA-HQ-RCRA-2009-0640-08226-25

Organization: Ohio Environmental Protection Agency

Commenter Type: State Government

Comment: Under the Subtitle D approach, EPA notes in its preamble that facilities 

accepting CCRs that are shipped off site for disposal must also meet the 40 CFR 257 standards. 

JEA requests that EPA allow those off-site facilities to accept CCRs for disposal without 

complying with the proposed 40 CFR 257 standards, provided that they are permitted or 

authorized to operate under the municipal solid waste regulations specified in 40 CFR 258. 

Otherwise, some of these facilities that are currently permitted under 40 CFR 258 standards may 

decide not to accept CCRs, should they also have to comply with the standards specified in 40 

CFR 257.

Comment Number: EPA-HQ-RCRA-2009-0640-08864-6

Organization: JEA

Commenter Type: Electric Utility Facility

Comment: It's unclear whether municipal solid waste (MSW) landfills that have been 

accepting CCR for disposal will also be required to comply with duplicative regulations pursuant 

to the Agency's proposed Subtitle D approach. While most CCR is disposed of in utility-owned 

CCR landfills, there is no prohibition against CCR being disposed of in MSW landfills. Given 

the design and performance standards of MSW landfills meet or exceed those being proposed by 

the Agency under Subtitle D, subjecting them to additional requirements (posting documentation 

on a website, professional engineer review certification, etc.) above and beyond their current 

state-approved permit is unwarranted. The Agency's Subtitle D proposal requires further 

clarification to ensure that MSW landfills that have previously accepted or may accept CCR in 

the future are not required to comply with these additional regulations. 

Comment Number: EPA-HQ-RCRA-2009-0640-09273-13
35

Organization: Iowa Department of Natural Resources (IDNR)

Commenter Type: State Government

 Response: The Agency agrees with these commenters. Thus, if CCRs are being disposed 

of off-site in a MSW landfill unit that is regulated and permitted under 40 CFR 258 in an 

approved state, the Agency’s position is that the MSW landfill requirements are at least as 

stringent as the requirements included in today’s rule. Therefore, the requirements of today’s 

final rule do not apply to MSW landfills that accept CCRs for disposal or for use as daily cover. 

However, EPA encourages owners or operators of MSW landfills that use CCRs as daily cover 

to ensure that appropriate fugitive dust controls are employed to prevent off-site releases of CCR 

dust. 

Comments and EPA Responses on the Definitions

C. Definitions.

EPA proposed definitions for a number of key terms used in the proposed subtitle D rule 

that the Agency determined were necessary for the proper interpretation of the proposed 

requirements, e.g., coal combustion residuals, existing CCR landfill. (See 75 FR at 35196-97, 

June 21, 2010). In addition, EPA also proposed definitions for terms that were specific to certain 

regulatory requirements, e.g., seismic impact zone. Definitions for the following terms that were 

in the proposed rule are not included in the final rule: Active life, Boiler slag, Bottom ash, 

Cenospheres, Coal Combustion Products, Electric power sector, Flue Gas Desulfurization, Fly 

ash, Free liquids, Independent registered professional engineer or hydrologist, Lateral Expansion, 

Maximum Contaminant Level, Minefill, Natural water table, Organosilanes, Potential damage 

case, Pozzolanic material, Proven damage case, Recognized and generally accepted good 

engineering practices, Secondary Drinking Water, Special Wastes, and Surface Water. EPA 

received a significant number of comments on the proposed definitions. Following is a 

compilation of the comments received on the proposed definitions and actions EPA is taking to 

address the comments.

1. “Active life”
36

EPA proposed “active life” to mean the period of operation beginning with the initial 

placement of CCRs in the landfill or surface impoundment and ending at completion of the 

closure activities in accordance with §257.110.3

Comment: “Active life”, according to the proposed regulations, refers to the time period 

from initial placement of CCR to closure of the landfills and surface impoundment. This cradleto-grave approach is in conflict with the definition for “existing”’ which requires that the CCR 

landfill or CCR surface impoundment be “in operation” as of the effective date of the 

regulations. The RCRA subtitle D approach would be more protective if it considered, at a 

minimum, all of the CCR landfills and CCR surface impoundments which did not obtain proper 

closure as “existing.” A CCR surface impoundment or CCR landfill will still pose a threat to the 

environment even after it no longer receives waste. This risk will be minimized when the surface 

impoundment closure requirements, including cap and cover, are met. 

Comment Number: EPA-HQ-RCRA-2009-0640-09282-20

Organization: North Carolina Department of Environment and Natural Resources

Commenter Type: State Government

Response: EPA agrees with the commenter that inactive CCR surface impoundments 

should be covered by the regulation, and as discussed in previous responses, and in more detail 

in section VI. B. 2 of the preamble to the final rule, the final rule does apply to inactive CCR 

surface impoundments at active power plants. However, the risks associated with inactive CCR 

landfills differ sufficiently so that EPA does not believe that regulation of these disposal units is 

warranted. Accordingly, EPA has added a definition for “Inactive CCR surface impoundment”

to the final rule as follows.

Inactive CCR surface impoundment means a CCR surface impoundment that no longer 

receives CCR on or after [INSERT DATE 180 DAYS FROM THE DATE OF 

PUBLICATION IN THE FEDERAL REGISTER] and still contains both CCR and liquids on 

 

3 NOTE: There was an error in the proposed regulatory language where 257.110 should have 

read §257.100, “Active life means the period of operation beginning with the initial placement of 

CCRs in the landfill or surface impoundment and ending at completion of closure activities in 

accordance with §257.110.”
37

or after [INSERT DATE 180 DAYS FROM THE DATE OF PUBLICATION IN THE 

FEDERAL REGISTER].

2. “Aquifer”

In the Subtitle D proposal EPA proposed “aquifer” to mean a geological formation, group 

of formations, or portion of a formation capable of yielding significant quantities of groundwater 

to wells. However, in the preamble to the proposed rule we defined aquifer to mean a geologic 

formation, group of formations, or portion of a formation capable of yielding significant 

quantities of ground water to wells or springs. This is the same definition currently used in EPA's 

hazardous waste program (40 CFR 260.10) and the MSWLF criteria in 40 CFR 258.2.

a. Multiple Definitions of Aquifer Causes Confusion.

Comment: In the subtitle C regulation, 40 CFR 260.3, “aquifer” is defined as follows: 

Aquifer means a geologic formation, group of formations, or part of a formation capable of 

yielding a significant amount of ground water to wells or springs. Different wording is used in 

the current rule for subtitle D municipal waste landfills, 40 CFR 257.3-4(c)(1): Aquifer means a 

geologic formation, group of formations, or portion of a formation capable of yielding usable 

quantities of ground water to wells or springs. In the proposed subtitle D alternative, a third 

wording is proposed. This uses the word “significant” as in § 260.3, but it removes the reference 

to springs and puts “amount” in the plural.

Using three definitions of the same word, when there are no clear differences of meaning, 

invites unnecessary legal disputes. The §260 definition should be used without change for CCRs,

whichever regulatory alternative EPA chooses. There is considerable regulatory precedent that 

relies on this definition — in particular, the very important concept of the “uppermost aquifer.” 

The easiest and most reliable way to avoid confusion is to use the definition hydrogeologists 

have become used to working under.

Comment Number: EPA-HQ-RCRA-2009-0640-06313-80

Organization: Earthjustice et. al.

Commenter Type: Advocacy Group

Response: EPA agrees with the commenter’s assertion that the different definitions of the

word ‘aquifer’ in the proposal are confusing when there are no clear differences of meaning, and

today is revising the definition to conform with §260.3. In today’s final rule, Aquifer means a
38

geologic formation, group of formations, or part of a formation capable of yielding a significant

amount of groundwater to wells or springs.

b. Replacement of “Usable Quantities” With “Significant Quantities.”

Comment: EPA is proposing another fundamental change in the subtitle D regulatory 

scheme that will significantly weaken groundwater protection. Section 257.3-4(c) currently 

prohibits the contamination of an aquifer, defined as “a geologic formation... capable of yielding 

usable quantities of groundwater to wells or springs.” EPA proposes to replace “usable 

quantities” with “significant quantities.” This change removes protection from those 

communities that depend on groundwater for drinking or agricultural use, who may not have 

access to a public water system, but whose use may not meet the impermissibly vague standard 

of “significant.” An examination of EPA’s damage case list, as well as the additional sites 

documented by public interest groups, reveals many dump sites where coal ash contamination 

poisoned a relatively small cluster of residential wells. EPA’s proposed regulation allows these 

communities’ water to be poisoned with no legal recourse. Such disregard for the safety of small 

communities certainly does not establish a “reasonable probability of no adverse impact on 

health” and is prima facie unlawful. 

Comment Number: EPA-HQ-RCRA-2009-0640-06313-80 & EPA-HQ-RCRA-2009-0640-

10495-58

Organization: Earthjustice et. al.

Commenter Type: Advocacy Group

Response: EPA is concerned with the safety of small communities, and is today 

finalizing regulations to control the disposal of coal combustion residuals, in part, to protect 

groundwater that serves as a source of water for drinking or agricultural use. As part of today’s 

final rule the Agency is modifying the definition of ‘aquifer’ in §257.40 to conform with the 

definition in §260.10. However, the Agency disagrees with the commenter’s assertion that 

‘significant quantities of groundwater’ constitutes an impermissibly vague standard relative to 

‘usable quantities of groundwater’ used in §257.3-4(c) to define formations that are aquifers. The 

word ‘significant’ conveys the quality of being important and is meant to include formations that 

contain usable quantities of groundwater. In practice, EPA considers the term ‘aquifer’ to include 

any geologic material that is currently used or could be used as a source of water for drinking or 

other purposes, such as agriculture.
39

c. The words "or springs" should be added at the end of the proposed definition.

Comment: In the Subtitle D proposed rule, EPA notes that it "has defined aquifer for this 

proposal as a geologic formation, group of formations, or portion of a formation capable of 

yielding significant quantities of ground water to wells or springs" and that this is the same 

definition used in both the hazardous waste program and for MSWLFs. However, the proposed 

definition of "aquifer" in 257.40 does not include the words "or springs" at the end of the 

definition. To ensure consistency between regulatory programs, DEQ recommends that the 

words "or springs" be added at the end of the proposed definition.

Comment Number: EPA-HQ-RCRA-2009-0640-08288-5

Organization: Oklahoma Department of Environmental Quality

Commenter Type: State Government

Response: The Agency agrees with the commenter that the definition of aquifer should 

be consistent between programs and acknowledges that the proposed definition in §257.40

omitted the words "or springs" in error. Consequently, the words "or springs" are added to the 

end of the definition finalized in today’s rule.

d. Revise Definition to Include the Unsaturated Vadose Zone for Water Table Aquifers.

Comment: The definition of aquifer should be revised to include the unsaturated vadose 

zone for water table aquifers. This can be done by altering the rule language to “aquifer means a 

geologic formation, group of formations, or a portion of a formation that are wholly or partially 

saturated with water and capable of yielding significant quantities of ground water to wells.” By 

adding the term “wholly or partially saturated with water and,” the rule would include the 

permeable vadose zone of the formation containing the water table aquifer. These permeable 

vadose zones allow rapid movement of contaminants into the saturated portion of the aquifer. By 

including the vadose zone into the definition of aquifer, greater protection of the saturated 

portion of the aquifer can be provided. 

Comment Number: EPA-HQ-RCRA-2009-0640-08226-40

Organization: Ohio Environmental Protection Agency

Commenter Type: State Government

Response: EPA’s intent was to be consistent with the definition of aquifer used in the 

MSW landfill criteria (40 CFR 258.2). Hence, since today’s rule is being promulgated under 
40

RCRA subtitle D, EPA is finalizing the definition of aquifer as proposed to be consistent with 

the definition of aquifer found in the MSW landfill criteria. 

To protect groundwater it is EPA’s strategy to monitor the saturated zone in the 

uppermost aquifer, since it is the first water source that can be adversely affected by leaked 

contaminants. EPA disagrees with the commenter’s assertion that the definition of aquifer be 

revised to include the undersaturated vapor zone, because it is technically not practical to install 

vadose zone monitoring systems retroactively at existing CCR landfills and surface 

impoundments, since construction of such systems could entail complete removal of CCRs and 

disruption of existing liner systems. Although the Agency recognizes that in some cases vadose 

zone monitoring would aid in the early detection of leaked contaminants before they reached the 

saturated zone, such systems may not be suitable at all CCR disposal units, particularly at 

locations where depth to the water table is close to the surface. There are also technical problems 

with existing leachate monitoring technology, which is still incapable of monitoring large areas 

under landfills, necessitating the placement and continuous maintenance of numerous probes at 

large landfills, which upon failure could involve removing CCRs to repair the devices. 

Moreover, groundwater monitoring is the only mechanism that accurately detects the presence 

and degree of groundwater contamination. Hence, for new and existing CCR landfills and CCR 

surface impoundments the Agency has concluded that saturated zone monitoring in the 

uppermost aquifer is sufficient to protect groundwater.

3. “Coal combustion products”

In the preamble to the June 21, 2010 proposed rule, EPA defined Coal Combustion 

Products (CCPs) to mean fly ash, bottom ash, boiler slag, or flue gas desulfurization materials, 

that are beneficially used. 

Comment: The Agency received several comments on this definition and the inconsistent 

use of the terms coal combustion products and coal combustion residuals throughout the 

preamble. Commenters noted that this inconsistency causes confusion and regulatory 

uncertainty.

Comment Number: EPA-HQ-RCRA-2009-0640-06356-7

Organization: U.S. Chamber of Commerce

Commenter Type: Trade Association
41

Comment Number: EPA-HQ-RCRA-2009-0640-08844-6

Organization: National Mining Association (NMA)

Commenter Type: Trade Association

Comment Number: EPA-HQ-RCRA-2009-0640-06957-1

Organization: Barrick Gold North America, Inc.

Commenter Type: Beneficial User

Comment Number: EPA-HQ-RCRA-2009-0640-07794-1

Organization: DC Goss LLC

Commenter Type: Consultant

Comment Number: EPA-HQ-RCRA-2009-0640-08227-1

Organization: Gypsum Association

Commenter Type: Trade Association

Comment Number: EPA-HQ-RCRA-2009-0640-09951-30

Organization: Full Circle Solutions, Incorporated

Commenter Type: Beneficial User

Comment Number: EPA-HQ-RCRA-2009-0640-11632_K-046-1

Organization: Headwaters Resources

Commenter Type: Beneficial User

Response: EPA agrees that using different terms for the same material, albeit one term 

when the material is beneficially used and another when the material is disposed of, causes 

confusion. Consequently, the Agency is not finalizing a definition for coal combustion products 

in the final rule and is using the term coal combustion residuals or CCRs whether the material is 

disposed of or beneficially used. The Agency’s position is that fly ash, bottom ash, boiler slag, 

and flue gas desulfurization materials generated from burning coal for the purpose of generating 

electricity by electric utilities and independent power producers are coal combustion residuals 

whether they are disposed of or beneficially used so, for definitional purposes, EPA is not 

referring to CCRs that are beneficially used as CCPs. For regulatory purposes, EPA is clear in 

the final rule that CCRs that are used in a manner that meets the definition of “Beneficial use of 

CCRs” are not subject to the requirements of the final rule. With regard to the storage of CCRs 

in piles and surface impoundments, CCR piles at the electric utility or independent power 

producer are defined as CCR landfills and are subject to the requirements for CCR landfills 
42

regardless of the ultimate fate of the CCRs. Likewise, all CCR surface impoundments as defined 

in the final rule are subject to the requirements for CCR surface impoundments regardless of the 

ultimate fate of the CCRs. The Agency is taking this position because in many instances it is 

difficult to determine if a CCR pile or CCR surface impoundment is holding only CCRs that will 

be beneficially used and, in particular with CCR surface impoundments, the risks posed by these 

units are not lessened simply because the CCRs will ultimately be beneficially used. On the 

other hand, CCR piles at a beneficial user’s facility or at a beneficial use site are not subject to 

the requirements of the final rule.

4. “Coal combustion residuals”

In the preamble to the proposed rule, EPA proposed “coal combustion residuals (CCRs)”

to mean fly ash, bottom ash, boiler slag, and flue gas desulfurization materials destined for 

disposal. CCRs are also known as coal combustion wastes (CCWs) and fossil fuel combustion 

(FCC) wastes, when destined for disposal. However, in the proposed Subtitle D rule EPA did 

not include the phrase “when destined for disposal” in the definition. EPA also proposed a 

definition for “fly ash” to mean the very fine globular particles of silica glass which is a product 

of burning finely ground coal in a boiler to produce electricity, and is removed from the plant 

exhaust gases by air emission control devices, and for “bottom ash” to mean the agglomerated, 

angular ash particles, formed in pulverized coal furnaces that are too large to be carried in the 

flue gases and collect on the furnace walls or fall through open grates to an ash hopper at the 

bottom of the furnace.

a. The definition in the proposed Subtitle D rule is inconsistent with the definition in the 

preamble and proposed Subtitle C rule. 

Comment: The CCR definition for Subtitle D regulation loses the disposal aspect from 

the preamble and the Subtitle C proposal. Is this omission intentional?

Comment Number: EPA-HQ-RCRA-2009-0640-09337-21

Organization: Arizona Department of Environmental Quality (ADEQ)

Commenter Type: State Government

Comment Number: EPA-HQ-RCRA-2009-0640-08864-5

Organization: JEA

Commenter Type: Electric Utility Facility
43

Response: EPA acknowledges the inconsistencies between the proposed Subtitle D rule, 

the preamble and the proposed Subtitle C rule which was not intentional. To avoid confusion 

from using multiple terms for the same material, EPA is not finalizing separate definitions for 

CCRs that are disposed of and CCRs that are beneficially used. See the response in section “g” 

below for additional detail.

b. The proposed definition in 40 CFR § 257is in conflict with 40 CFR § 261.2.

Comment: The CCR definition includes flue gas materials; these materials are already 

likely considered a “sludge” which is exempt from being solid waste when reclaimed since they 

are not listed. If CCR, however, is a listed special waste then it would always be solid waste 

pursuant to 40 CFR § 261.2. There would be a conflict between 40 CFR § 261.2 and 40 CFR § 

257 if this is not addressed.

Comment Number: EPA-HQ-RCRA-2009-0640-09337-23

Organization: Arizona Department of Environmental Quality (ADEQ)

Commenter Type: State Government

Response: EPA has decided not to list CCR as a special waste (i.e., hazardous waste) and 

instead has finalized non-hazardous waste regulations under Subtitle D of RCRA. Therefore, 

this comment is not applicable.

c. The definition seems to exclude other utility furnace designs.

Comment: “Coal combustion residuals” means fly ash, bottom ash, boiler slag, and FGD 

destined for disposal. The definitions of fly ash and bottom ash imply combustion in a pulverized 

coal-type furnace. This would seem to exclude other utility furnace designs, such as fluidized 

bed, or forestall applicability to new furnace designs that don’t utilized pulverized coal.

Comment Number: EPA-HQ-RCRA-2009-0640-06416-48

Organization: Wisconsin Department of Natural Resources (WI DNR) and Public Service 

Commission of Wisconsin (WI PSC)

Commenter Type: State Government

Response: The Agency agrees with the commenter and that the proposed definitions for 

“fly ash” and “bottom ash” would imply that they are only generated from pulverized coalburning boilers. However, EPA is not finalizing definitions for “fly ash” and “bottom ash” in 

the final rule so this limitation will no longer be implied.

d. Definition Should Exclude Non-Electric Utility Residuals.
44

Comment: EPA must revise its definition to exclude non-electric utility residuals. The 

current definition does not distinguish between electric utility and non-electric utility coal 

combustion residuals. However, the entire preamble of the rule states that the proposal is directed 

towards electric utility residuals only. Therefore, the definitions must be revised to address only 

those residuals meant to be regulated by this rulemaking.

Comment Number: EPA-HQ-RCRA-2009-0640-09423-5

Organization: American Forest and Paper Association (AF&PA)

Commenter Type: Trade Association

Comment Number: EPA-HQ-RCRA-2009-0640-10497-8

Organization: Seminole Electric Cooperative, Inc. (Seminole)

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-05751-1

Organization: Savannah River Nuclear Solutions, LLC (SRNS)

Commenter Type: Other Company

Response: EPA acknowledges that the definition did not distinguish between utility and 

non-utility CCR. We believe that this distinction is appropriate and thus, have revised the 

definition of coal combustion residual to read as follows: 

Coal combustion residuals (CCR) means fly ash, bottom ash, boiler slag, and flue gas 

desulfurization materials generated from burning coal for the purpose of generating 

electricity by electric utilities and independent power producers. 

e. Definition Should Exclude CCRs generated primarily from the combustion of fossil fuels other 

than coal.

Comment: While § 261.4(b)(iii) of the proposed Subtitle C regulations would explicitly 

exclude “fly ash, bottom ash, boiler slag and flue gas emission control wastes, generated 

primarily from the combustion of fossil fuels other than coal, for the purpose of generating 

electricity,” there is no similar exclusion under the proposed Subtitle D regulations. LPPC 

therefore respectfully requests EPA to clarify that such residual materials “generated primarily 

from the combustion of fossil fuels other than coal” are outside the scope of “CCRs” under 

Subtitle D.
45

Comment Number: EPA-HQ-RCRA-2009-0640-06541-10

Organization: Large Public Power Council (LPPC)

Commenter Type: Trade Association

Response: We agree with the commenter that the final rule should be clear as to which 

wastes are subject to today’s regulation. Therefore, §257.50 of the final rule specifies that the 

requirements do not apply to fly ash, bottom ash, boiler slag and flue gas emission control 

wastes, generated primarily from the combustion of fossil fuels other than coal, for the purpose 

of generating electricity unless the fuel is a mixture of more than fifty percent (50%) coal and 

other fuel(s). In this case, the wastes generated by the electric power sector would be subject to 

today’s CCR regulations. However, as discussed in the next response below, inactive CCR 

surface impoundments at electric utilities or independent power producers that continue to 

produce electricity and maintain CCR disposal units would still be subject to the requirements of 

today’s final rule, even if they no longer continue to burn coal and generate CCR wastes.

f. Definition Should Exclude Wastewaters with De minimus Amounts of CCR.

Comment: The definition should only apply to solids and should exclude wastewaters 

that contain de minimis amounts of CCRs. For example, due to the sheer volume and the 

physical composition of CCRs, de minimis amounts of CCRs are inevitably released in small 

quantities within the facility during normal power generation and residuals management 

activities (e.g., fugitive and de minimis emissions from ash conveyance or loading equipment 

and during the transport/handling of CCBs for beneficial use). These CCRs are often 

encountered and accumulate when the building and various structures are washed down. This 

maintenance/cleaning activity results in wastewater that contains de minimis amounts of CCRs. 

Comment Number: EPA-HQ-RCRA-2009-0640-06529-18 & 34

Organization: NiSource Corporate Services

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06532-18 & 30

Organization: Southern Illinois Power Cooperative

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-09239-56

Organization: Prairie State Generating Company, LLC (PSGC)

Commenter Type: Electric Utility Company
46

Response: We generally agree with the commenter, but we have determined this issue is 

best addressed in the definition of CCR surface impoundment. In particular, in the June 21, 2010 

proposed rule preamble and regulatory language, EPA defined surface impoundment as a diked 

area which is designed to hold an accumulation of CCRs containing free liquids. The definition 

also gave the following examples of CCR surface impoundments: holding, storage, settling, and 

aeration pits, ponds, and lagoons. Additionally, the proposed regulatory language stated that “the 

requirements of this [rule] apply to owners or operators of CCR landfills and CCR surface 

impoundments. EPA acknowledges that the proposed rule lacked clarity on what types of surface 

impoundments are intended to be subject to the rule. EPA’s intent was to subject only those 

impoundments that are designed with the primary purpose of receiving CCR for disposal or 

storage prior to disposal to the regulations. Moreover, EPA did not perform risk analyses on 

surface impoundments holding only wastewaters with de minimus amounts of CCR and does not 

have a record of damage cases associated with these units. Therefore, the Agency is finalizing 

the following definition for CCR surface impoundment in the final rule.

CCR surface impoundment or impoundment means a natural topographic depression, 

man-made excavation, or diked area, which is designed to hold an accumulation of CCR 

and liquids, and the unit treats, stores, or disposes of CCR.

g. Definition Should Add “Destined for Disposal.”

Comment: EPA indicates that RCRA subtitle D is intended only to regulate CCR disposal 

practices. However, because the definition of CCRs in the subtitle D alternative broadly defines 

CCRs as fly ash, bottom ash, boiler slag, and flue gas desulfurization materials, without 

distinguishing whether the material is destined for disposal (like the subtitle C alternative), there 

are concerns that the rule may be interpreted inappropriately to capture some CCP storage 

activities, such as storage piles. As EPA is aware, its regulatory authority under RCRA subtitle D 

is limited to regulating solid waste disposal practices and solid wastes are defined as “discarded 

materials.” 42 U.S.C. § 6903 (27). Since CCPs by definition are not discarded materials, they

cannot be subject to regulation under RCRA subtitle D. To avoid any confusion, it is 

recommended that EPA modify the definition of CCRs in Section 257.40 to track the definition 

proposed under RCRA subtitle C. Only CCRs destined for disposal and not beneficial use should 

be subject to regulation. 
47

Comment Number: EPA-HQ-RCRA-2009-0640-06529-18 & 34

Organization: NiSource Corporate Services

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06532-18 & 30

Organization: Southern Illinois Power Cooperative

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-09239-56

Organization: Prairie State Generating Company, LLC (PSGC)

Commenter Type: Electric Utility Company

Response: The final rule is not regulating CCRs, rather the rule is regulating the units 

(e.g., landfills and surface impoundments) used for the purpose of treatment, storage, or disposal

of CCRs. EPA believes defining CCR as material destined for disposal and providing a separate 

definition for the same material that is beneficially used causes confusion. As such, we are 

providing a definition for CCR that does not distinguish between material that is destined for 

disposal or beneficially used. Additionally, we are making clear in the General Provisions 

section of the rule (§257.50) that today’s rule does not apply to CCR that is beneficially used.

Thus, the final definition reads as follows:

Coal combustion residuals (CCR) means fly ash, bottom ash, boiler slag, and flue gas 

desulfurization materials generated from burning coal for the purpose of generating 

electricity by electric utilities and independent power producers.

5. “CCR landfill”

EPA proposed “CCR landfill” to mean a disposal facility or part of a facility where CCRs 

are placed in or on land and which is not a land treatment facility, a surface impoundment and 

underground injection well, a salt dome formation, a salt bed formation, an underground mine, a 

cave, or a corrective action management unit. For purposes of this subpart, landfills also include 

piles, sand and gravel pits, quarries, and/or large scale fill operations. Sites that are excavated so 

that more coal ash can be used as fill are also considered CCR landfills.

a. Definition Overly Broad and Attempts to Capture all Operations Involving CCR.

Comment: This definition would inappropriately capture the use of CCRs that are being 

used for a legitimate functional purpose, and thus are not a “solid waste” because they have not 

been “discarded.” In addition, the phrase “large scale fill operations” is unlawfully vague and 
48

cannot be included in a final regulatory definition without a supplemental proposal setting forth 

discernible and readily understandable parameters as to what constitutes the type of “large scale 

fill operations” that would constitute a CCR landfill.

Comment Number: EPA-HQ-RCRA-2009-0640-06956-14

Organization: Tri-State Generation & Transmission

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-09885-29

Organization: Progress Energy, Inc.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-10483-56

Organization: Utility Solid Waste Activities Group (USWAG) et al.

Commenter Type: Trade Association

Comment Number: EPA-HQ-RCRA-2009-0640-06863-44

Organization: Avista Corp.

Commenter Type: Electric Utility Company

Response: On August 2, 2013, EPA published an additional FR notice that solicited 

comment on two potential approaches to further defining large scale fill operations, as well as the 

information on which the Agency intended to rely in reaching a final decision on this issue.

Comment: The definition is overly broad to the extent that it attempts to capture all 

operations involving the use of CCR. As defined, it will have significant detrimental impacts 

upon legitimate beneficial use. The definition attempts to capture all operations involving the use 

of CCRs for "large scale fill operations." This is one of the fundamental problems with the 

proposed definition in that it assumes all CCR placed in large scale fill operations constitutes the 

“disposal” of CCR (and that these operations therefore constitute CCR landfills). This 

assumption is incorrect. CCR is often used in engineered fills, such as road base and road 

embankments, and is incorporated into the design of Department of Transportation road and 

highway construction projects. Simply put, the definition should not subject legitimate beneficial 

use of CCR in any engineered fill application to the CCR landfill regulations. 

Comment Number: EPA-HQ-RCRA-2009-0640-06252-18

Organization: Minnkota Power Cooperative, Inc. (Minnkota)

Commenter Type: Electric Utility Company
49

Comment Number: EPA-HQ-RCRA-2009-0640-06254-20

Organization: Sunflower Electric Power Corporation

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06339-6

Organization: Arizona Electric Power Cooperative, Inc.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06357-8

Organization: Kansas City Power & Light Company

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06446-7

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

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06528-7

Organization: Buckeye Power, Inc.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06722-22

Organization: Arkansas Electric Cooperative Corporation (AECC)

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06827-9

Organization: Oklahoma Gas and Electric Company (OG&E)

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06956-14

Organization: Tri-State Generation & Transmission

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-08220-11

Organization: PowerSouth Energy Cooperative

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-08840-19

Organization: Electric Power Generation Association

Commenter Type: Trade Association
50

Comment Number: EPA-HQ-RCRA-2009-0640-08841-33

Organization: Deseret Generation and Transmission Co-operative

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-09274-18

Organization: RRI Energy Inc.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-09885-29

Organization: Progress Energy, Inc.

Commenter Type: Electric Utility Company

Comment: Given the controlling case law, it is simply incorrect to assume that all CCR 

large-scale fill projects involve the "discard" of CCRs. To the contrary, CCRs have long been 

used for a wide range of large-scale structural fill projects where they serve the functional 

purpose of providing structural stability including for, among other things, aboveground 

structures, road projects, embankments, and reconfiguration of property to meet design standards 

for run-off controls. A structural fill project should be evaluated based on whether the project is 

beneficial (i.e., provides a functional benefit) and does not threaten health or the environment, 

not just on the size of the project.

Comment Number: EPA-HQ-RCRA-2009-0640-06956-14

Organization: Tri-State Generation & Transmission

Commenter Type: Electric Utility Company

Comment: Within the definition of a landfill, “large scale fill” is not defined. We propose 

that the EPA quantify the size of the fill and take “large scale” out of the definition.

Comment Number: EPA-HQ-RCRA-2009-0640-09282-16

Organization: North Carolina Department of Environment and Natural Resources

Commenter Type: State Government

Response: EPA has revised its approach to large scale fill. Consistent with that decision, 

EPA has decided not to define CCR fill operations or large-scale fill operations. Instead, the 

final definition of beneficial use incorporates requirements to demonstrate that the operation in 

fact constitutes a beneficial use, including requirements designed to demonstrate that the use will 

be protective of human health and the environment, rather than a disguised disposal activity. 
51

Additionally, the Agency revised the definition of CCR landfill by removing the term 

“large-scale fill” and by encompassing any placement of CCR on the land that does not meet the 

definition of a beneficial use of CCR. Accordingly, the revised definition reads as follows:

CCR landfill or landfill means an area of land or an excavation that receives CCR and 

which is not a surface impoundment, an underground injection well, a salt dome formation, a salt 

bed formation, an underground or surface mine, or a cave. For purposes of this subpart, a CCR 

landfill also includes sand and gravel pits and quarries that receive CCR, CCR piles, and any 

placement of CCR on the land that does not meet the definition of a beneficial use of CCR.

For a more detailed discussion see the beneficial use section of the preamble to the final 

rule and comment and response document Volume 12: Beneficial Use and Definition of CCR 

Landfill (only) available in the docket for the final rule (EPA-HQ-RCRA-2009-0640).

b. Clarify That CCR Landfills Do Not Include Municipal Solid Waste Landfills That Accept CCR.

Comment: The definition of CCR landfill specifically includes piles, sand and gravel pits, 

quarries, large scale fill operations, and “sites that are excavated so that more coal ash can be 

used as fill.” As worded, it is not clear that this excludes co-disposal with MSW or other nonMSW, which leaves open the potential that such sites would also be CCR landfills and subject to 

the rule. Revise this definition to specifically exclude existing RCRA subtitle D municipal solid 

waste landfills whose owners periodically accept CCRs for disposal. 

Comment Number: EPA-HQ-RCRA-2009-0640-06416-28 & 48

Organization: Wisconsin Department of Natural Resources (WI DNR) and Public Service 

Commission of Wisconsin (WI PSC)

Commenter Type: State Government

Comment Number: EPA-HQ-RCRA-2009-0640-06517-1

Organization: None given

Commenter Type: Anonymous

Comment Number: EPA-HQ-RCRA-2009-0640-07534-13

Organization: Aquaterra Environmental Solutions, Inc.

Commenter Type: Other Company

Response: EPA recognizes that there are MSW landfills that either accept CCR for 

disposal, use CCR as daily cover, or both. Since the proposed and final RCRA subtitle D 

standards for CCR landfills are modeled after the standards for MSW landfills found at 40 CFR 
52

258, EPA has concluded that disposal of CCR in MSW landfills is as protective as disposal in 

CCR landfills. Both the MSW and CCR standards require composite liners, groundwater 

monitoring, corrective action, and fugitive dust controls. EPA notes, however, that the 

groundwater monitoring requirements in today’s rule have been modified from the proposed 

requirements. See Sections VI. H. and VIII. B. 7 of the preamble to the final rule for detailed 

discussions of the requirements and modifications. While the MSW fugitive dust criteria (air 

criteria) are not as specific as those in today’s rule, the MSW criteria require that owners or 

operators of all MSWLFs ensure that the units not violate any applicable requirements developed 

under a State Implementation Plan (SIP) approved or promulgated by the Administrator pursuant 

to section 110 of the Clean Air Act, as amended. 

The Agency is not requiring MSW landfills that receive CCR for disposal or use as daily 

cover to modify their groundwater monitoring programs to comply with today’s final rule. For 

example, the proposed and today’s final list of constituents to be used for detection monitoring at 

CCR landfills and surface impoundments include boron which is known to be a leading indicator 

of releases of contaminants from CCRs while boron is not on the list of detection monitoring 

constituents for MSW landfills. EPA is not requiring that MSW landfills that receive CCRs add 

boron to their existing list of detection monitoring constituents. For the following reasons EPA 

believes the existing list of detection monitoring constituents found in 40 CFR 258 is appropriate 

to detect potential releases of CCRs from a MSW landfill. First, the pH of most CCR leachate 

tends to be slightly alkaline to near neutral depending on coal chemistry. MSW landfill leachate 

also tends to be near neutral. Under suboxic, near neutral pH conditions the following metals in 

CCRs are known to be mobile: sulfate (SO4), magnesium (Mg), iron (Fe(+2)), zinc (Zn), nickel 

(Ni), arsenic (As), selenium (Se), and boron (B). Of this group, the following are also detection 

monitoring constituents for MSW landfills under 40 CFR 258: Zn, Ni, As, and Se. So with all 

other factors affecting mobility being equal, adding boron to the list of detection monitoring 

constituents for MSW landfills is not necessary. Moreover, As and Se are associated with 

existing CCR damage cases, which tends to confirm CCR leachate as being near neutral to 

slightly alkaline. So, EPA believes the existing detection monitoring constituents for MSW

landfills that contain CCRs is sufficient. Second, EPA is concerned that MSW landfills that 

receive CCRs may choose not to modify their groundwater monitoring programs to meet the 

requirements of today’s rule and, therefore, would be precluded from receiving CCRs after the 
53

effective date of the rule. In some states (e.g., Nebraska), as we have learned in comments on 

the proposed rule, this could result in insufficient CCR disposal capacity. Finally, EPA does not 

have any evidence of damages resulting from the disposal or use of CCRs as daily cover at MSW 

landfills. Therefore, the Agency sees no need to impose duplicative requirements for MSW 

landfills that receive CCRs. 

However, rather than exclude MSW landfills that receive CCR for disposal or daily cover 

from the definition of CCR landfill, the Agency is excluding MSW landfills from the 

requirements of the final rule by including them in a listing of excluded facilities or activities in 

§257.42 of the final rule. As to the comment regarding co-disposal with other non MSW, the 

Agency has no information that this is occurring, however, non MSW waste facilities with 

landfills or surface impoundments (e.g., industrial waste facilities) that receive CCR for disposal 

would be subject to today’s regulations. A CCR landfill is defined as an area of land or an 

excavation that receives CCR. The definition does not delineate whether the CCR landfill is 

located at the electric utility’s or independent power producer’s site or at some other site (offsite). Therefore, with the exceptions listed in the General Provisions section of the rule 

(§257.50) and the applicability section of the preamble (section VI. B), today’s rule applies to 

CCRs disposed of at off-site disposal facilities. 

c. Definition Should Not Include Piles.

Comment: The EPA proposed definition of “CCR Landfill” under proposed RCRA 

Subtitle D regulatory option includes the term “piles.” At many utility generation facilities, CCR 

often are placed into piles for purposes of dewatering, staging, and/or consolidation prior to 

placement in a CCR landfill. It is inappropriate to regulate such temporary CCR storage piles in 

the same manner as an actual landfill in which the CCR are permanently disposed.

Comment Number: EPA-HQ-RCRA-2009-0640-06299-18

Organization: MidAmerican Energy Holdings Company (MidAmerican)

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06529-19

Organization: NiSource Corporate Services

Commenter Type: Electric Utility Company
54

Comment Number: EPA-HQ-RCRA-2009-0640-06532-18 & 30

Organization: Southern Illinois Power Cooperative

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-08220-11

Organization: PowerSouth Energy Cooperative

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-08247-8

Organization: Tucson Electric Power Company

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-09358-5

Organization: Interstate Power and Light Company (IPL) and Wisconsin Power and Light 

Company (WPL)

Commenter Type: Electric Utility Company

Comment: As is the case with "large scale fill operations," inclusion of this term in the 

proposed definition is overbroad and would inappropriately capture CCR management activities 

that do not constitute disposal.

Comment Number: EPA-HQ-RCRA-2009-0640-06252-18

Organization: Minnkota Power Cooperative, Inc. (Minnkota)

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06254-20

Organization: Sunflower Electric Power Corporation

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06339-6

Organization: Arizona Electric Power Cooperative, Inc.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06528-7

Organization: Buckeye Power, Inc.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06722-22

Organization: Arkansas Electric Cooperative Corporation (AECC)

Commenter Type: Electric Utility Company
55

Comment Number: EPA-HQ-RCRA-2009-0640-08220-11

Organization: PowerSouth Energy Cooperative

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-08247-8

Organization: Tucson Electric Power Company

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-08841-33

Organization: Deseret Generation and Transmission Co-operative

Commenter Type: Electric Utility Company

Comment: EPA must also set forth discernible and readily understandable criteria 

concerning what constitutes a “pile.” CCR is commonly stored temporarily in piles in multiple 

applications, all of which do not constitute disposal. For example, electric utilities have stack-out 

areas where CCR is staged before it is shipped as legitimate product for beneficial use or 

disposed in a CCR landfill. Thus, temporary storage in piles does not constitute “disposal.” 

Therefore, the term “pile” must be more narrowly defined.

Comment Number: EPA-HQ-RCRA-2009-0640-06398-43

Organization: Duke Energy

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06529-35

Organization: NiSource Corporate Services

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-07048-8

Organization: TransAlta Centralia Generation

Commenter Type: Electric Utility Company

Comment: EPA proposes to regulate only coal ash “destined for disposal.” CCPs are 

often temporarily stored in piles and other units prior to being beneficially used. Because CCP 

temporary storage units are often similar to those used for CCRs, EPA needs to clarify “destined 

for disposal” to indicate that the accumulation of coal combustion materials in piles or other 

units does not automatically result in the material being characterized as CCR. We believe this is 

EPA’s intent since it did not address costs associated with these units in the RIA. 
56

Comment Number: EPA-HQ-RCRA-2009-0640-06529-18

Organization: NiSource Corporate Services

Commenter Type: Electric Utility Company

Comment: The term “piles” in the definition of "CCR landfill" is also overly broad, as it 

does not specify the size or intent for which such piles exist and would inappropriately capture 

on-going, short-term CCR management activities that do not constitute disposal. The inclusion 

of piles, as written, could include even small piles that are staged and/or consolidated prior to 

transport or placement for disposal. These piles could be located at the disposal facility, but 

could also be located at the generating plant. It would be inappropriate to apply all the landfill 

siting and design requirements to these "piles." To remedy this problem, EPA should remove the 

term “piles” from the definition of “CCR landfill,” as piles are not landfills in any ordinary (or 

existing regulatory) sense of the term, and do not present a significant risk to the environment as 

evidenced by the lack of “damage cases.” 

Comment Number: EPA-HQ-RCRA-2009-0640-06722-22

Organization: Arkansas Electric Cooperative Corporation (AECC)

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06827-9

Organization: Oklahoma Gas and Electric Company (OG&E)

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06956-14

Organization: Tri-State Generation & Transmission

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-08247-8

Organization: Tucson Electric Power Company

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-08840-19

Organization: Electric Power Generation Association

Commenter Type: Trade Association

Comment Number: EPA-HQ-RCRA-2009-0640-08841-33

Organization: Deseret Generation and Transmission Co-operative

Commenter Type: Electric Utility Company
57

Comment Number: EPA-HQ-RCRA-2009-0640-09274-18

Organization: RRI Energy Inc.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-09427-20

Organization: San Miguel Electric Cooperative, Inc. (San Miguel)

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-09885-29

Organization: Progress Energy, Inc.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-10483-57

Organization: Utility Solid Waste Activities Group (USWAG) et al.

Commenter Type: Trade Association

Comment: The term "piles" should be deleted from any definition of "CCR Landfill". 

Including "piles" in the definition of CCR Landfill without clearly defining that the rule only 

applies to waste CCRs and not to storage of product CCPs will lead to confusion. We believe it 

will lead to misapplication of the landfill standards to CCP product storage piles. CCP producers 

and users often store product CCP in piles, either at the facility that produces the CCP, at the end 

use location, or in intermediate storage locations prior to the beneficial use of the products. 

These piles should be clearly excluded from any definition of "landfill" to avoid inappropriate 

regulation as wastes or landfills.

Comment Number: EPA-HQ-RCRA-2009-0640-07048-8

Organization: TransAlta Centralia Generation

Commenter Type: Electric Utility Company

Comment: While EPA may be concerned about piles being used inappropriately for 

sham disposal of CCRs, a more appropriate way to address this concern would be to set a limit 

on the amount of time that the CCRs are allowed to be maintained in a pile. The storage of CCRs 

in piles beyond the timeframe established in the regulations would create a rebuttable 

presumption that disposal, not storage, is taking place and that the pile should be subject to the 

CCR landfill requirements. A timeframe of 180 days would be an appropriate length for 

purposes of establishing a rebuttable presumption that the pile be viewed as a “CCR landfill” and 

not as a storage pile when storage exceeds this time limit. As with any rebuttable presumption, 
58

however, the facility would have the opportunity to demonstrate that storage beyond the 180 

days is legitimate and necessary to facilitate disposal in a landfill or impoundment (e.g., disposal 

capacity is limited and/or storage beyond this time period is necessary to facilitate transportation 

to a disposal facility).

Also, given that the CCRs in piles are often continuously removed and replaced with new 

CCRs, the 180-day time limit would apply to the CCRs themselves and not to the existence of 

the pile itself, which will be continually changing in size as CCRs are periodically added and 

removed from it. This is the approach EPA takes in the case of applying the 90-day accumulation 

time limit to continuous process flow-through tanks under the Agency‘s hazardous waste 

accumulation rules under 40 CFR. § 262.34; the same common-sense approach should be 

applied here.

Comment Number: EPA-HQ-RCRA-2009-0640-06956-14

Organization: Tri-State Generation & Transmission

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-10483-57

Organization: Utility Solid Waste Activities Group (USWAG) et al.

Commenter Type: Trade Association

Another option would be to develop a set of reasonable design and operating standards 

consistent with the uses and risks posed by piles. Design standards could include the requirement 

for a low permeability underlayment or base such as asphalt, concrete or an HDPE liner. 

Operating standards could include such provisions as labeling, and the requirement to remove at 

least 90% of the contents every 90 days, with a full cleanout annually. 

Comment Number: EPA-HQ-RCRA-2009-0640-06532-18 & 30

Organization: Southern Illinois Power Cooperative

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06956-14

Organization: Tri-State Generation & Transmission

Commenter Type: Electric Utility Company

Response: EPA agrees that short-term storage of CCRs in piles prior to beneficial use, or 

prior to shipment for beneficial use does not constitute disposal and including piles in the 

definition of CCR landfills would subject temporary piles to the liner and groundwater 
59

monitoring requirements. Nevertheless, EPA is including CCR piles in the definition of CCR 

landfill because we believe these piles can pose similar risks from contaminants leaching into 

groundwater, and from fugitive dust, as do landfills. However, EPA has also finalized a 

definition for CCR pile or pile specifying that CCR that is beneficially used is not a CCR pile.

d. EPA Must Clarify that CCP in Temporary Piles are Not CCR Landfills.

Comment: The definition of a CCR landfill could be inappropriately interpreted by some 

as capturing piles that temporarily hold CCPs, such as FGD gypsum piles, where the FGD 

gypsum is exclusively marketed and is not “destined for disposal” or a “discarded material.” 

However, because the process entails the use of a pile, EPA needs to clarify that piles used to 

temporarily store CCPs are not CCR landfills. To hold otherwise would be contrary to the plain 

language of the proposal. A CCR landfill is a landfill “where CCRs are placed in or on land.” 

The operative term is “CCRs.” Since, in this case the pile would be holding CCPs not CCRs, the 

pile is not a CCR landfill. If EPA fails to make this clarification, large volumes of CCPs will not 

be recycled. For example, wallboard manufacturers often require storage of large volumes of 

synthetic gypsum from FGDs to ensure a continuous supply of the material. The inability to have 

stockpiles of material is a disincentive to reuse.

Comment Number: EPA-HQ-RCRA-2009-0640-06532-18 & 30

Organization: Southern Illinois Power Cooperative

Commenter Type: Electric Utility Company

Response: The Agency has observed that CCRs, primarily bottom ash, slag, and flue gas 

desulfurization materials are in fact staged in piles prior to beneficial use or disposal. However 

the Agency believes CCR piles pose similar risks as CCR landfills and is finalizing a definition 

that includes on-site piles. (As mentioned above, we have also added a definition for CCR pile 

or pile specifying that CCR that is beneficially used is not a CCR pile.) EPA is also concerned 

that piles, particularly fly ash piles, can be a significant source of fugitive dust, hence, the 

fugitive dust requirements for CCR landfills will also apply to on-site CCR piles.

e. Definition Should Exclude Surface Mines.

Comment: The proposed definition of a CCR landfill must be amended to explicitly 

exclude surface mines as well as underground mines.
60

Comment Number: EPA-HQ-RCRA-2009-0640-06398-43

Organization: Duke Energy

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-07395-20

Organization: Texas Coal Combustion Products Coalition (TCCPC)

Commenter Type: Trade Association

Comment Number: EPA-HQ-RCRA-2009-0640-09427-20

Organization: San Miguel Electric Cooperative, Inc. (San Miguel)

Commenter Type: Electric Utility Company

Comment: This definition needs to be amended to clearly state that minefills and mineland reclamation projects are excluded from the definition. EPA’s Preamble reference to its 

intent to exclude “CCRs in mines, or non-minefill uses of CCRs at coal mine sites,” should not 

be codified as a means to address this issue. As discussed above, because CCRs by definition 

relate to waste disposal, materials placed at mine sites should not be considered or referred to as 

CCRs. If the regulations do not identify that the use of CCBs in mine land reclamation is a 

beneficial use or that the use of CCBs in mine land reclamation is considered to be mine land 

reclamation not disposal, then OSM’s ability under §702 of SMCRA (referencing other federal 

laws) to develop a regulatory program to control the use of CCBs in minefill and mine-land 

reclamation projects is significantly impacted.

Comment Number: EPA-HQ-RCRA-2009-0640-07489-35

Organization: Council of Industrial Boiler Owners (CIBO)

Commenter Type: Trade Association

Comment: The inconsistencies in EPA's treatment of CCRs used at surface and 

underground coal mining and reclamation operations extend to EPA's definitions of "CCR 

landfill" and "Beneficial use of Coal Combustion Products (CCPs)." See 75 Fed. Reg. at 35,129-

130. Both definitions reference "large scale fill" operations or projects and create considerable 

confusion and uncertainty over the application of the disposal regulations in the proposed rule to 

surface coal mining and reclamation operations. If these terms are adopted in the final rule 

without further explanation and definition then surface coal mining operations that use CCRs in 

SMCRA-authorized reclamation permits for backfilling open pits would be improperly subject to 

regulation under RCRA as a "CCR landfill." Such a result would directly contradict EPA's stated 
61

intention to allow OSM to take the lead on regulating uses of CCRs at coal mines in accordance 

with the NRC's recommendations. See 75 Fed. Reg. at 35,143 & 35,165. It is imperative that 

EPA clarify that the term "CCR landfill" in fact does not include the use of CCRs at surface coal 

mining and reclamation operations.

EPA defines the term "CCR landfill" by only expressly excluding "underground mine[s]." 

At the same time, EPA's regulatory definition of "CCR landfill" includes "large scale fill 

operations" as a disposal facility covered by the rule. EPA also defines "Beneficial use of Coal 

Combustion Products (CCPs)" as expressly excluding the use of CCRs in "large scale fill 

projects, such as for restructuring the landscape." Importantly, EPA's use of the terms "large 

scale fill operations" and "large scale fill projects" are not specifically defined in the preamble or 

the proposed regulations. It is imperative that EPA clarify that the term "CCR landfill" in fact 

does not include the use of CCRs at surface coal mining and reclamation operations. It is also 

essential that EPA exclude surface coal mining and reclamation operations from the term "large 

scale fill operation" by stating explicitly that all surface and underground coal mining and 

reclamation operations are exempt from EPA's regulation. 

Response: As described in the June 21, 2010 proposed rule, the rule does not address the 

placement of CCRs in minefills. The U. S. Department of Interior (DOI) and EPA will address 

the management of CCRs in minefills in a separate regulatory action(s), consistent with the 

approach recommended by the National Academy of Sciences (NAS), recognizing the expertise 

of DOI’s Office of Surface Mining Reclamation and Enforcement in this area.4 Although it was 

 

4 The National Research Council (NRC) Committee on Mine Placement of Coal Combustion Wastes 

stated: “The committee believes that OSM and its SMCRA state partners should take the lead in 

developing new national standards for CCR use in mines because the framework is in place to deal with 

mine-related issues.” National Academy of Sciences. Managing Coal Combustion Residues in Mines; 

The National Academies Press, Washington, D.C., 2006. 

Comment Number: EPA-HQ-RCRA-2009-0640-08844-6 & 8

Organization: National Mining Association (NMA)

Commenter Type: Trade Association

Comment Number: EPA-HQ-RCRA-2009-0640-09713-13

Organization: Indianapolis Power & Light Company (IPL)

Commenter Type: Electric Utility Company
62

not clear in the proposed rule, EPA intended the term minefill to include placement of CCR in 

surface as well as underground mines. The NAS study examined the placement of CCR in 

“abandoned and active surface and underground coal mines” and EPA’s intent when excluding 

minefilling from the proposed rule was to be consistent with the NAS study. Therefore, EPA is 

clarifying in the final rule that the term CCR landfill does not include the use of CCRs at surface 

coal mines.

6. “CCR surface impoundment”

EPA proposed “CCR surface impoundment” to mean a facility or part of a facility which 

is a natural topographic depression, man-made excavation, or diked area formed primarily of 

earthen materials (although it may be lined with man-made materials) which is designed to hold 

an accumulation of CCRs containing free liquids, and which is not an injection well. Examples 

of CCR surface impoundments are holding, storage, settling, and aeration pits, ponds and 

lagoons. CCR surface impoundments are used to receive CCRs that have been sluiced (flushed 

or mixed with water to facilitate movement), or wastes from wet air pollution control devices, 

often in addition to other solid wastes. This definition is consistent with EPA’s definition of 

surface impoundment in the Criteria for Classification of Solid Waste Disposal Facilities and 

Practices at 40 CFR 257.2.

a. Definition Should Include Only Impoundments Whose Primary Function is the Disposal of 

CCR.

Comment: This definition should be limited to capture only impoundments “designed” to 

accumulate CCRs. If applied appropriately, this definition generally would only extend to those 

impoundments into which CCRs are initially sluiced, hydraulically applied from air pollution 

control devices, and/or applied to other surface impoundments that are hydraulically connected 

and designed for disposal of CCR. However, as drafted, the definition could be interpreted to 

include downstream secondary and tertiary impoundments – such as polishing, cooling, 

wastewater and holding ponds – that receive waters containing only de minimis amounts of 

CCRs. For example, many power plants have holding ponds and/or wastewater ponds 

constructed and used for the management of various water streams that do not contain any CCR. 

A wastewater impoundment at a facility that receives non-CCR wastewaters may, however, 

occasionally receive de minimis amounts of CCR via storm water runoff (for example, from an 

FGD storage pad) or from wastewater containing de minimis amounts of CCR from an upstream 
63

CCR impoundment. In these circumstances, the wastewater impoundment clearly is not 

“designed to hold an accumulation of CCRs,” and is not in any practical or technical sense “used 

to receive CCR that have been sluiced” to the impoundment. Similarly, wash water from facility 

trucks or other equipment may contain very small amounts of CCR, and a pond receiving the 

wash water, under the proposed definition, could be considered a “CCR surface impoundment.” 

Regulating ponds or impoundments receiving only de minimis amounts of CCR would impose 

significant costs on facilities for extremely small environmental benefits. Furthermore, it would 

be illogical and unnecessary to apply the full array of proposed controls for CCR impoundments, 

including liner systems, groundwater monitoring, siting restrictions, and related standards, to 

these units whose primary function is not the disposal of CCR. 

Comment Number: EPA-HQ-RCRA-2009-0640-06252-18

Organization: Minnkota Power Cooperative, Inc. (Minnkota)

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06254-20

Organization: Sunflower Electric Power Corporation

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06339-6

Organization: Arizona Electric Power Cooperative, Inc.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06357-8

Organization: Kansas City Power & Light Company

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06398-44

Organization: Duke Energy

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06422-35

Organization: Dynegy Inc

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06528-7

Organization: Buckeye Power, Inc.

Commenter Type: Electric Utility Company
64

Comment Number: EPA-HQ-RCRA-2009-0640-06722-22

Organization: Arkansas Electric Cooperative Corporation (AECC)

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06827-8

Organization: Oklahoma Gas and Electric Company (OG&E)

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06833-22

Organization: Dominion Resources Services, Inc.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06863-46

Organization: Avista Corp.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06865-3

Organization: Constellation Energy

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06956-14

Organization: Tri-State Generation & Transmission

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06987-13

Organization: Entergy Services, Inc.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-07047-32

Organization: Great River Energy

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-07395-7

Organization: Texas Coal Combustion Products Coalition (TCCPC)

Commenter Type: Trade Association

Comment Number: EPA-HQ-RCRA-2009-0640-07489-24

Organization: Council of Industrial Boiler Owners (CIBO)

Commenter Type: Trade Association
65

Comment Number: EPA-HQ-RCRA-2009-0640-08212-7

Organization: Utility Water Act Group

Commenter Type: Trade Association

Comment Number: EPA-HQ-RCRA-2009-0640-08220-11

Organization: PowerSouth Energy Cooperative

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-08841-33

Organization: Deseret Generation and Transmission Co-operative

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-08247-8

Organization: Tucson Electric Power Company

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-08853-5

Organization: Lower Colorado River Authority (LCRA)

Commenter Type: Electric Utility Facility

Comment Number: EPA-HQ-RCRA-2009-0640-09358-17

Organization: Interstate Power and Light Company (IPL) and Wisconsin Power and Light 

Company (WPL)

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-09880-11

Organization: FirstEnergy Corporation

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-09885-29

Organization: Progress Energy, Inc.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-10483-58

Organization: Utility Solid Waste Activities Group (USWAG) et al.

Commenter Type: Trade Association

Comment Number: EPA-HQ-RCRA-2009-0640-10497-12

Organization: Seminole Electric Cooperative, Inc. (Seminole)

Commenter Type: Electric Utility Company
66

This confusion is also illustrated by EPA’s own inconsistency in what structures it 

considers to be surface impoundments. As EPA is aware, its 2009 Information Collection 

Request (“ICR”) distributed to electric utility power plants resulted in a broad interpretation of 

what constitutes a surface impoundment used to accumulate CCR. EPA’s ICR requested that any

surface impoundment receiving even small amounts of CCR be identified. It was clearly 

understood at the time that the breadth of this ICR would include surface impoundments that are 

not CCR impoundments used for disposal, but which nonetheless may contain small amounts of 

CCR through power plant runoff or other sources. This expansion in defining CCR surface 

impoundments in the ICR context cannot, and should not, be perpetuated through a definition of 

“CCR surface impoundments” in the Proposed Rule. To ensure that this does not occur, EPA 

must amend the definition to include a more detailed functional element that excludes surface 

impoundments at power plants that receive only small amounts of CCR. As a final note, EPA 

itself acknowledges that it intends for the proposed definition “to capture those surface 

impoundments that are described in EPA‘s damage cases and risk assessments.”

Comment Number: EPA-HQ-RCRA-2009-0640-06398-44

Organization: Duke Energy

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-10483-59

Organization: Utility Solid Waste Activities Group (USWAG) et al.

Commenter Type: Trade Association

Alternatively, in recognition of the low risk of release to groundwater posed by surface 

impoundments that are not designed to accumulate CCRs and their critical role in continuing 

operations and compliance with various Clean Water Act requirements, EPA should develop an 

exemption for those surface impoundments that are not specifically designed to hold an 

accumulation of CCRs, even though they may contain de minimis amounts of CCRs (e.g., less 

than 10% of their volume). In the alternative, EPA could develop a de minimis exemption for 

wastewaters and effluent contained in and discharging from surface impoundments, especially 

those which are not specifically designed to hold an accumulation of CCRs and do not routinely 

receive CCRs. Following either approach would allow EPA to achieve regulation of those 

surface impoundments that initially receive and settle the solids, but would exempt secondary 

and tertiary settling and polishing impoundments and their wastewater contents. Both approaches 
67

would also exempt other surface impoundments that are used to manage stormwater, cooling 

water and other processes. These approaches recognize the relatively low risk of significant 

releases to groundwater posed by surface impoundments that are not designed to hold an 

accumulation of CCRs and do not initially receive and settle CCRs. These approaches also 

reduce regulatory redundancy, because many of these surface impoundments are regulated under 

existing National Pollutant Discharge Elimination System (NPDES) permits. 

Comment Number: EPA-HQ-RCRA-2009-0640-06308-14

Organization: NRG Energy Inc.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06529-20, 31 & 36

Organization: NiSource Corporate Services

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06532-18, 27 & 30

Organization: Southern Illinois Power Cooperative

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06827-8

Organization: Oklahoma Gas and Electric Company (OG&E)

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06956-14

Organization: Tri-State Generation & Transmission

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-09239-52 & 62

Organization: Prairie State Generating Company, LLC (PSGC)

Commenter Type: Electric Utility Company

Response: First, while EPA recognizes that many of the surface impoundments that are 

not designed to accumulate CCRs are subject to NPDES permits, such control is generally 

limited to discharges into surface water and not releases to the groundwater. Therefore, the 

Agency does not agree that controlling these surface impoundments under RCRA subtitle D 

would impose regulatory redundancy. Nevertheless, EPA acknowledges that its proposed 

definition is inconsistent. While the intent was to cover surface impoundments that are designed 

specifically for the accumulation of CCRs, the definition gave examples of impoundments that 
68

function for purposes other than the accumulation of CCRs; e.g., settling and aeration pits, 

ponds, and lagoons. Therefore, EPA is finalizing a definition that clarifies its intent to only 

regulate surface impoundments which holds an accumulation of CCRs and liquids for the 

purpose of treatment, storage, or disposal. The Agency believes the final definition clarifies that 

CCR surface impoundments do not include overfills, cooling water ponds, process water ponds, 

wastewater treatment ponds, stormwater holding ponds, aeration ponds, or polishing ponds. (See 

also the Response to Comments in Section VI. C. 3. B of the preamble to the final rule.)

Comment: We are concerned that the definition of a CCR surface impoundment could be 

inappropriately interpreted by some as capturing impoundments that temporarily hold CCPs, 

such as bottom ash impoundments. The bottom ash generated is exclusively marketed and is not 

“destined for disposal” or a “discarded material.” Therefore, it is a CCP, not a CCR. However, 

because the process entails the use of an impoundment, we would like EPA to clarify that 

impoundments used to temporarily store CCPs are not CCR surface impoundments. To hold 

otherwise would be contrary to the intent of the proposal and would inappropriately expand the 

reach of Subtitle D to materials that are not “discarded.”

Comment Number: EPA-HQ-RCRA-2009-0640-06529-20, 31 & 36

Organization: NiSource Corporate Services

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06532-18 & 30

Organization: Southern Illinois Power Cooperative

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-09239-56 & 62

Organization: Prairie State Generating Company, LLC (PSGC)

Commenter Type: Electric Utility Company

Response: As mentioned in a previous response, the final rule is not regulating CCR, 

rather the rule is regulating the units (e.g., landfills and surface impoundments) used for the 

purpose of treatment, storage, or disposal of CCR. Consequently, EPA is finalizing a definition 

that clarifies its intent to only regulate surface impoundments which are designed to hold an 

accumulation of CCR and liquids for the purpose of treatment, storage, or disposal.

b. Certain Units Should be Excluded or Handled Differently Under the Definition of CCR 

Surface Impoundment.
69

Comment: EPA must differentiate between temporary and permanent surface 

impoundments so that facilities which require and rely on short-term processing and storage 

before moving CCRs off-site for beneficial use or permanent disposal retain an ability to use 

them. Moreover, temporary surface impoundments should not be subject to the same level of 

regulation as permanent impoundments because their use is fundamentally different from 

permanent disposal facilities.

Comment Number: EPA-HQ-RCRA-2009-0640-08244-34

Organization: Edison Mission Energy, LLC

Commenter Type: Electric Utility Company

Comment: EPA should consider limiting to two years the time that CCRs are allowed to 

accumulate in the surface impoundment without recovery or shipment to an off-site disposal 

facility.

Comment Number: EPA-HQ-RCRA-2009-0640-06865-23

Organization: Constellation Energy

Commenter Type: Electric Utility Company

Comment: Similarly, EPA must consider that at power plants where dry CCR 

management is the norm, these same ponds are important and necessary backup systems to dry 

ash handling operations. Dry ash system maintenance and repairs often dictate that quickly 

available wet back-up systems are necessary to collect CCRs and hold them to prevent 

environmental releases until the dry systems can be brought back on line. These holding ponds 

are usually small (less than 5 acres) and shallow ( either constructed below grade, or rising less 

than 25 feet above ground level) and are routinely dewatered and excavated, and the CCRs are 

properly disposed. Without these back-up systems, these generating plants cannot run, and would 

have to be shut down temporarily during maintenance and repairs. Power plants use back-up 

systems to maintain reliability and availability to the power grid. 

EPA also needs to refine the definition for CCR surface impoundment or add an 

exemption from these waste disposal regulations for these small operational ponds which are not 

disposal facilities but are important elements of the dry ash management system. At a minimum, 

we suggest that the exemption apply to holding ponds utilized by utilities that typically use dry 

CCR management, but have temporary back-up surface impoundments, provided the ponds: (1) 

do not exceed 25 feet in height; (2) do not exceed 1 acre per each 500MW increment of on-site 
70

coal; (3) meet groundwater monitoring requirements, and (4) are cleaned out at a frequency of at 

least every three years with those CCRs going to dry waste disposal facilities.

Comment Number: EPA-HQ-RCRA-2009-0640-09880-11

Organization: FirstEnergy Corporation

Commenter Type: Electric Utility Company

Comment: CCR landfills will generate three distinct rainfall generated flows: 1. Rainfall 

that percolates through the landfill and collected in the bottom of the landfill and conveyed by 

the leachate collection system; 2. Rainfall runoff that comes in contact with CCRs by surface 

flow; and 3. Rainfall that does not come in contact with CCRs, such as rainfall runoff from areas 

that have a final cover system installed. In most circumstances surface impoundments are 

constructed for the purpose of handling these rainfall-generated flows from CCR landfills. These 

rainfall generated flows are currently regulated under “EPA’s NPDES Multi-Sector General 

Permit for Stormwater Discharges Associated with Industrial Activity,” state NPDES stormwater 

and wastewater discharge programs, and other state stormwater management programs and 

regulations. If the intent of the proposed EPA rules is to primarily address ash-sluicing ponds and 

not the stormwater runoff from CCR landfills, to avoid conflict and duplicity with existing rules, 

EPA should exclude surface impoundments constructed for the purpose of handling rainfall 

generated flows from CCR landfills from the proposed regulations.

Comment Number: EPA-HQ-RCRA-2009-0640-06424-5

Organization: Garrett & Moore, Inc.

Commenter Type: Other Company

Comment Number: EPA-HQ-RCRA-2009-0640-06832-24

Organization: SCANA Corporation

Commenter Type: Electric Utility Company

Response: The Agency believes that the storage of CCR landfill leachate in surface 

impoundments without the proper controls, whether temporary or permanently, does pose risks 

to human health and the environment particularly from the potential migration of contaminants 

that have leached from CCRs into groundwater. Therefore, the final rule applies to all surface 

impoundments which hold an accumulation of CCR and liquid (e.g., landfill leachate) and the 

unit treats, stores, or disposes of CCR. 
71

c. Definition Should Exclude Dewatered Surface Impoundments Being Operated or Closed as 

CCR Landfills.

Comment: The definition of CCR surface impoundment must be modified to exclude 

former surface impoundments that have been dewatered by the compliance deadline and are 

being operated or closed as landfills. Alternatively, the definition should exclude surface 

impoundments that have been dewatered and closed for purposes of serving as the base for a 

CCR landfill or as the base for equipment or building expansion for power plant facilities. 

Dewatered impoundments that subsequently serve as the base for CCR landfills or property 

developments are not impoundments and should not be captured by the CCR surface 

impoundment definition.

Comment Number: EPA-HQ-RCRA-2009-0640-06299-18

Organization: MidAmerican Energy Holdings Company (MidAmerican)

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06352-19

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

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06398-44

Organization: Duke Energy

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06422-35

Organization: Dynegy Inc

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06833-22

Organization: Dominion Resources Services, Inc.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06863-46

Organization: Avista Corp.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06987-13

Organization: Entergy Services, Inc.

Commenter Type: Electric Utility Company
72

Comment Number: EPA-HQ-RCRA-2009-0640-09358-17

Organization: Interstate Power and Light Company (IPL) and Wisconsin Power and Light 

Company (WPL)

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-09885-29 & 33

Organization: Progress Energy, Inc.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-09971-6

Organization: PPL Services Corporation

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-10166-13

Organization: Consumers Energy Company

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-10483-60

Organization: Utility Solid Waste Activities Group (USWAG) et al.

Commenter Type: Trade Association

Comment: EPA has made no effort in its Subtitle D proposal to consider those state 

programs that provide a means to convert CCR surface impoundments to landfills through 

dewatering and other appropriate requirements. After these impoundments are appropriately 

converted, EPA should specifically identify these facilities as landfills and impose the regulatory 

requirements for existing CCR landfills rather than require these converted units to be subject to 

controls for existing surface impoundments, including closure requirements. This will allow the 

continued operation of these existing CCR landfills and regulate these units pursuant to the 

appropriate applicable standards and not require utilities to acquire land for the construction of 

new landfills.

Comment Number: EPA-HQ-RCRA-2009-0640-06198-4

Organization: Ameren Corporation

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06863-30

Organization: Avista Corp.

Commenter Type: Electric Utility Company
73

Comment Number: EPA-HQ-RCRA-2009-0640-09885-33

Organization: Progress Energy, Inc.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-10483-48

Organization: Utility Solid Waste Activities Group (USWAG) et al.

Commenter Type: Trade Association

Response: As discussed in Section VI. B. 2 of the preamble to the final rule, the Agency 

has determined that inactive CCR surface impoundments also pose risks and is applying the 

requirements for CCR surface impoundments in today’s rule to inactive CCR surface 

impoundments at active electric utilities and independent power producers. (See §257.54 of the 

final rule for definitions of active CCR disposal unit and inactive CCR surface impoundment.) 

One exception being CCR surface impoundments that have been dewatered and are no longer 

able to hold free liquids, and have a final cover installed in accordance with §257.102 of today’s 

rule, are not subject to today’s regulations for CCR surface impoundments. (See the 

Applicability section in the preamble to the final rule at Section VI. B.) When a new CCR 

landfill is constructed over a CCR surface impoundment that has been dewatered, the 

impoundment no longer holds an accumulation of liquids and, therefore, no longer meets the 

definition of CCR surface impoundment. Additionally, the new CCR landfill is subject to the 

requirements for new CCR landfills in today’s regulations. Today’s regulations require new 

CCR landfills to install a composite liner, which would effectively serve as a cover over the 

dewatered CCR surface impoundment. 

Since publication of the proposed rule, EPA has learned of the practice of using inactive 

or closed CCR landfills, and dewatered CCR surface impoundments as the base for constructing 

new CCR landfills. The subsequent new CCR landfill is typically referred to as an “overfill.” 

Overfills are an alternative to siting a new landfill and provide an opportunity to develop 

additional disposal capacity without creating a new CCR disposal footprint. (See the discussion, 

regarding Overfills in Section VI. J. 1 of the preamble to the final rule.) When these overfills are 

constructed and operated in accordance with the requirements of today’s rule for new CCR 

landfills; i.e., with composite liners or alternative liners meeting the hydraulic conductivity 

standard, leachate collection and removal systems, groundwater monitoring systems, corrective 

action, record keeping, and the closure, and post closure care requirements, they are as protective 
74

as any other new CCR landfill meeting the requirements of this rule. Moreover, if the overfill 

liner is installed to cover the entire inactive CCR landfill or dewatered CCR surface 

impoundment, the liner essentially acts as a final cover over the old CCR disposal unit. In such 

cases the Agency agrees with commenters that the dewatered CCR surface impoundment is no 

longer a CCR surface impoundment. Rather than address overfills in the definition of CCR 

surface impoundment, EPA has included overfills in the definition of new CCR landfills and 

included a definition for overfill in the final rule. 

Regarding dewatered CCR surface impoundments that serve as a base for equipment or 

building expansion for power plant facilities, as stated above, CCR surface impoundments that 

have been dewatered and are no longer able to hold free liquids, and have been capped are not 

subject to today’s regulations for CCR surface impoundments. Dewatered CCR surface 

impoundments are no longer subjected to hydraulic head so the risk of releases would be no 

greater than those from inactive/closed CCR landfills which are not subject to today’s rule. 

Unless the dewatered CCR surface impoundment remains open (i.e., does not have a soil, 

concrete, asphalt, or similar cover), the Agency sees no need to subject the units to today’s rule. 

d. CCR Surface Impoundments Can be Built With Bottom Ash Not Just Earthen Materials.

Comment: The definition of CCR surface impoundment states in part that “... a facility or 

part of a facility which is a ... diked area formed primarily of earthen materials...” The Agency 

should be made aware that some dikes are built largely from bottom ash which should be added 

to the definition.5

Comment Number: EPA-HQ-RCRA-2009-0640-06298-72

Organization: Tennessee Department of Environment and Conservation (TDEC)

Commenter Type: State Government

Response: EPA acknowledges that dikes and berms are also constructed using CCR and 

is revising the definition by not specifying that dikes are formed primarily of earthen materials. 

The Agency believes this revision will encompass all CCR surface impoundments regardless of 

the material used to form or construct dikes. For new CCR surface impoundments, the berm or 

dike is required to be lined with a composite liner. For unlined existing units, the hydraulic head 

imposed on the berm or dike would be no greater, and for the most part less, than the hydraulic 

 

5 See also “Using Fly Ash to Construct New Ash Pond Containment Dikes at the Wabash River 

Generating Station,” Duke Energy and Burns & McDonnell, 2006.
75

head imposed on the CCR at the bottom of the unit. Additionally, regardless of the material used 

to construct berms or dikes, all CCR surface impoundments meeting specific height and capacity 

criteria are subject to the structural integrity requirements of the final rule. As such, EPA 

believes today’s criteria for CCR surface impoundments are protective regardless of the material 

used to construct berms or dikes.

e. Definition Should Include a Size Limitation.

Comment: In addition to including a more specific functional description within the 

definition, EPA should incorporate a size limit into the definition. This will ensure that small 

units that do not pose the potential risks associated with the types of CCR surface impoundments

described in the damage cases and risk assessment are excluded from the definition and 

subsequent regulation under the proposed rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06299-18

Organization: MidAmerican Energy Holdings Company (MidAmerican)

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06308-14

Organization: NRG Energy Inc.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06357-8

Organization: Kansas City Power & Light Company

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06398-44

Organization: Duke Energy

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06833-22

Organization: Dominion Resources Services, Inc.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-10483-60

Organization: Utility Solid Waste Activities Group (USWAG) et al.

Commenter Type: Trade Association

EPA has proposed a size threshold of 20-acre-feet or more for purposes of triggering the 

structural integrity requirements for CCR surface impoundments. Out of an abundance of 
76

conservatism, a size threshold of half this volume - or 10-acre-feet or more - should serve as the 

size criterion for classifying a unit as a CCR surface impoundment in the first instance (though 

we agree with EPA that the 20-acre-feet threshold should serve as the criterion for triggering the 

structural integrity requirements for CCR surface impoundments). 

Comment Number: EPA-HQ-RCRA-2009-0640-06398-44

Organization: Duke Energy

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06833-22

Organization: Dominion Resources Services, Inc.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-10483-60

Organization: Utility Solid Waste Activities Group (USWAG) et al.

Commenter Type: Trade Association

Response: EPA disagrees that the definition should be limited to surface impoundments 

with a storage capacity of 10 or 20 acre-feet or more. While we acknowledge that surface 

impoundments of this size would not pose the same level of risk and little hazard if they were to 

fail structurally, the Agency has determined that surface impoundments with a storage capacity 

of 10 or 20 acre-feet or less believes they could pose risks to groundwater and surface water if 

they are not subjected to the controls in today’s final rule., particularly the liner and groundwater 

monitoring requirements. However, as we noted in the proposed rule, since the available 

information demonstrates that surface impoundments of this or lesser size should not pose a 

hazard from structural failure, EPA is not subjecting surface impoundments with a berm height 

less than 5 feet or a storage capacity less than 20 acre-feet to the structural integrity requirements 

and the annual and five-year inspection requirements. Therefore, EPA is not including a size 

criterion (as suggested by the commenter) in the final definition of CCR surface impoundment. 

It is important to note however, that all existing and new CCR surface impoundments as well as 

all lateral expansions of these units are required to comply with the weekly inspection 

requirements established under today’s rule. 

In light of the above comments on the definition of CCR surface impoundment and after 

careful consideration, EPA is finalizing the definition of CCR surface impoundment as follows.
77

CCR surface impoundment or impoundment means a natural topographic depression, 

man-made excavation, or diked area, which is designed to hold an accumulation of CCR 

and liquids, regardless of whether the purpose is for of treatment, storage, or disposal.

7. “Existing CCR landfill” 

EPA proposed “existing CCR landfill” to mean a CCR landfill which was in operation on, 

or for which construction commenced prior to [the effective date of the rule]. A CCR landfill 

has commenced construction if the owner or operator has obtained the federal, state, and local 

approvals or permits necessary to begin physical construction; and either: (1) A continuous onsite, physical construction program has begun; or (2) the owner or operator has entered into 

contractual obligations – which cannot be cancelled or modified without substantial loss – for 

physical construction of the CCR landfill to be completed within a reasonable time.

a. Definition is Unclear Regarding Types of Landfills Covered.

Comment: The words "was in operation on, or for which construction commenced prior 

to" will lead to confusion. Closed landfills and any structural fill which EPA considers a landfill 

at some point in time "were in operation" and "commenced construction" prior to the effective 

date of the regulation. With this interpretation, groundwater monitoring wells, financial 

assurance, closure, post-closure and other unnecessary and burdensome requirements will be 

placed on thousands of closed CCP projects. These include residential properties, commercial 

properties used by small businesses, and many recreational facilities. We doubt that EPA had 

that in mind when writing this proposal. The exclusion of closed projects needs to be made more 

clearly in both the definition of CCR landfill and CCR surface impoundment.6

Comment Number: EPA-HQ-RCRA-2009-0640-09951-27

Organization: Full Circle Solutions, Incorporated

Commenter Type: Beneficial User

Response: The Agency agrees that the phrase “was in operation on the effective date of 

the rule” could cause confusion and is revising the definition to remove the term. EPA also 

agrees that, as proposed, the phrase "commenced construction" prior to the effective date of the

 

6 Therefore, we suggest the following: Existing CCR landfill means a CCR landfill which on [the 

effective date of the final rule] was in operation, or for which construction has commenced. 
78

rule could also cause confusion. Therefore, the Agency is clarifying the definition by adding the 

phrase “and receives CCR on or after [the effective date of the rule]” after the phrase “was in 

operation on [the effective date of the rule].” See section (c) below for the final definition. EPA 

believes these revisions will clarify the Agency’s intent and alleviate any confusion. EPA is also 

making these modifications to the definition of Existing CCR surface impoundment.

b. Definition Should Include Lateral Expansions Approved and Permitted by State Without 

Contractual Agreement.

Comment: The proposed definition of an existing CCR landfill should be modified to 

include lateral expansions of operating units where such expansion is within the site footprint of 

an area already approved and permitted by the state for the CCR landfill. While the currently 

proposed definition includes undeveloped areas within the footprint of an approved permitted 

site, it also requires that construction actually commence at the site or that some type of binding 

contractual obligation be present for these areas to be considered an existing CCR landfill. 

However, regardless of whether construction has commenced or there is a contractual obligation 

present for expansion, such undeveloped areas pose no additional risk since they are already 

approved and permitted. Moreover, there is no health-based or environmental-based reason to 

support such a distinction. To exclude a location that has otherwise already been permitted for a 

CCR landfill from the definition of an “existing” landfill merely because there is not a binding 

contractual commitment to begin construction would unfairly subject these areas to the design 

and operating standards for new CCR landfills, especially where identical locations are 

considered existing CCR landfills but are subject to different operating standards based merely 

on the existence of a contract to commence construction. Such a distinction is arbitrary and 

capricious and provides no practical benefit.

Comment Number: EPA-HQ-RCRA-2009-0640-06398-46

Organization: Duke Energy

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06529-19 & 35

Organization: NiSource Corporate Services

Commenter Type: Electric Utility Company
79

Comment Number: EPA-HQ-RCRA-2009-0640-06532-18 & 30

Organization: Southern Illinois Power Cooperative

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06956-14

Organization: Tri-State Generation & Transmission

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-08247-8

Organization: Tucson Electric Power Company

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-09274-18

Organization: RRI Energy Inc.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-09358-17

Organization: Interstate Power and Light Company (IPL) and Wisconsin Power and Light 

Company (WPL)

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-10483-62

Organization: Utility Solid Waste Activities Group (USWAG) et al.

Commenter Type: Trade Association

Comment: EPGA does not agree that this contractual obligation should be included as a 

prerequisite for a facility to meet the definition of “existing." In fact, the overriding obligation 

for a facility to be considered existing should be the approvals or permits. To obtain those 

permits or approvals, the facility design has been subject to the scrutiny of the authorizing 

authorities, and thus a requirement that a contract also be in place is irrelevant for protection of 

human health and the environment

Comment Number: EPA-HQ-RCRA-2009-0640-08840-19

Organization: Electric Power Generation Association

Commenter Type: Trade Association

Response: EPA disagrees with these commenters that there should be no distinction, from 

an environmental standpoint, between undeveloped areas where federal, state and local approvals 

or permits necessary to begin physical construction have been obtained, and undeveloped areas 
80

that have been approved and permitted by state regulatory authorities for the location of a CCR 

landfill. The state permit may have been approved without a liner requirement or without 

consideration of location standards. The proposed definition was based on the definition for 

existing hazardous waste management (HWM) facility or existing facility found in 40 CFR §260.

Therefore, the definition of existing CCR landfill (and existing CCR surface impoundment) is 

being finalized as essentially as proposed but with modifications.

c. Contractual Agreement Language is Vague, Unenforceable, and Not Protective.

Comment: The second part of the definition of existing CCR landfill states, “(2) The 

owner or operator has entered into contractual obligations-which cannot be cancelled or modified 

without substantial loss-for physical construction of the CCR landfill to be completed within a 

reasonable time.” As written, the definition is vague, unenforceable, and thus, not protective of 

human health and the environment. There is no definitive or generally accepted meaning for the 

term “substantial loss” or the term “reasonable time.” An owner or operator, sensing that these 

proposed rules may be passed, could sign a contract now which has a specified cost for 

cancellation or modification and a contract term of say 5 years or even longer. That would mean 

such landfill as described, would not be required to have a liner, to have run-on/run-off controls, 

to have a minimum depth above groundwater, to have groundwater monitoring requirements, or 

the proposed post-closure requirements. 

Comment Number: EPA-HQ-RCRA-2009-0640-06313-95

Organization: Earthjustice et. al.

Commenter Type: Advocacy Group

Response: As stated in the response to the previous comment, the proposed definition was 

based on the definition for existing hazardous waste management (HWM) facility or existing 

facility found in 40 CFR §260. However, EPA agrees with the commenter that the contractual 

agreement language is vague and generally accepted meanings for the terms “substantial loss” 

and “reasonable time” do not exist which could make enforcement on these grounds difficult. 

Although, EPA does not have experience with owners or operators using contractual agreements 

to evade the regulatory requirements for units constructed after the effective date of the rule, the 

Agency believes the second contractual provision in the proposed definition would be 

unenforceable and thus of no value to the definition. Therefore, EPA is finalizing the definition 

of “existing CCR landfill” as follows.
81

Existing CCR landfill means a CCR landfill that receives CCR both before and after 

[INSERT DATE 180 DAYS AFTER THE DATE OF PUBLICATION IN THE 

FEDERAL REGISTER], or for which construction commenced prior to [INSERT 

DATE 180 DAYS AFTER THE DATE OF PUBLICATION IN THE FEDERAL 

REGISTER] and receives CCR on or after [INSERT DATE 180 DAYS AFTER THE 

DATE OF PUBLICATION IN THE FEDERAL REGISTER]. A CCR landfill has 

commenced construction if the owner or operator has obtained the federal, state, and 

local approvals or permits necessary to begin physical construction and a continuous onsite, physical construction program had begun prior to [INSERT DATE 180 DAYS 

AFTER THE DATE OF PUBLICATION IN THE FEDERAL REGISTER].

8. “Existing CCR surface impoundment”

EPA proposed “existing CCR surface impoundment” to mean a surface impoundment 

which was in operation on, or for which construction commenced prior to [the effective date of 

the rule]. A CCR surface impoundment has commenced construction if the owner or operator 

has obtained the federal, state, and local approvals or permits necessary to begin physical 

construction; and either: (1) A continuous on-site, physical construction program has begun; or 

(2) the owner or operator has entered into contractual obligations – which cannot be cancelled or 

modified without substantial loss – for physical construction of the CCR landfill to be completed 

within a reasonable time.

a. Definition Needs to Exclude Units that Ceased Receiving CCR Prior to the Effective Date of 

the Rule. 

Comment: The proposed definition of “existing CCR surface impoundment” needs to be 

modified to clarify that it does not include surface impoundments that ceased receiving CCRs 

before the effective date of the rule. The proposed definition includes, in pertinent part, an 

impoundment that “was in operation...prior to the effective date of the rule.” See 75 FR at 35240 

(proposed 40 CFR §257.40(b)). EPA should modify this phrase to include a surface

impoundment that “was in operation and had not yet ceased receiving CCR prior to the effective 

date of the rule” to make clear that the definition does not encompass units that are no longer 

receiving CCRs on the effective date of the rule, even though the unit may not have completed 

final closure prior to the rule‘s effective date. Plainly, units that are no longer receiving CCR on 
82

the effective date of the rule are not “in operation” and therefore should not be subject to the 

standards applicable to active units.

Comment Number: EPA-HQ-RCRA-2009-0640-06299-18

Organization: MidAmerican Energy Holdings Company (MidAmerican)

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06398-45

Organization: Duke Energy

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06956-14

Organization: Tri-State Generation & Transmission

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-08840-19

Organization: Electric Power Generation Association

Commenter Type: Trade Association

Comment Number: EPA-HQ-RCRA-2009-0640-09274-18

Organization: RRI Energy Inc.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-09880-12

Organization: FirstEnergy Corporation

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-10483-61

Organization: Utility Solid Waste Activities Group (USWAG) et al.

Commenter Type: Trade Association

Response: EPA agrees with the comment and, for the same reasons discussed for 

existing CCR landfills in section 7 above, EPA is finalizing a definition with modifications that 

will alleviate this confusion.

b. Definition Needs to Clarify that It Includes Units that Periodically Dredge.

Comment: EPA should clarify in the final rule that the definition does include surface 

impoundments that are operating on the effective date of the rules and that are periodically 

dredged out during the operating life of the impoundment. While this may seem self-evident, it is 

important to clarify this point so that surface impoundments periodically dredged out during their 
83

normal operating life to allow for their continued use are not inappropriately characterized as a 

“new CCR surface impoundment” when the facility reinitiates placement of CCRs in the surface 

impoundment after dredging operations are complete.

Comment Number: EPA-HQ-RCRA-2009-0640-06398-45

Organization: Duke Energy

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-06956-14

Organization: Tri-State Generation & Transmission

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-10483-61

Organization: Utility Solid Waste Activities Group (USWAG) et al.

Commenter Type: Trade Association

Response: EPA agrees with commenters that existing CCR surface impoundments (i.e., 

those that received wastes before and after the effective date of the rule) should not be classified 

as new CCR merely because the unit is periodically dredged to maintain storage capacity. The 

final definition is clear that a CCR surface impoundment that receives CCR both before and after 

the effective date of the rule is an existing CCR surface impoundment. Although the definition 

does not make a distinction between existing surface impoundments that are dredged and those 

that are not dredged, EPA believes it is clear from the final definition that CCR surface 

impoundments that dredge are existing CCR surface impoundments if they receive CCRs both 

before and after the effective date of the rule. Therefore, the Agency is finalizing the definition 

as follows.

Existing CCR surface impoundment means a CCR surface impoundment that receives 

CCR both before and after [INSERT DATE 180 DAYS AFTER THE DATE OF 

PUBLICATION IN THE FEDERAL REGISTER], or for which construction 

commenced prior to [INSERT DATE 180 DAYS AFTER THE DATE OF 

PUBLICATION IN THE FEDERAL REGISTER] and receives CCR on or after 

[INSERT DATE 180 DAYS AFTER THE DATE OF PUBLICATION IN THE 

FEDERAL REGISTER]. A CCR surface impoundment has commenced construction if 

the owner or operator has obtained the federal, state, and local approvals or permits 

necessary to begin physical construction and a continuous on-site, physical construction 
84

program had begun prior to [INSERT DATE 180 DAYS AFTER THE DATE OF 

PUBLICATION IN THE FEDERAL REGISTER].

9. “Free liquids”

Comment: A definition should be added for "free liquids" to help clarify if and how a 

landfill or surface impoundment is regulated.

Comment Number: EPA-HQ-RCRA-2009-0640-06280-20

Organization: South Carolina Department of Health and Environmental Control

Commenter Type: State Government

Response: EPA agrees that the term “free liquids” should be defined and is adding the 

following definition in the definitions section of the final rule. This definition is the same as the 

definition of free liquids in EPA’s regulations for hazardous wastes at 40 CFR 260.10.

Free liquids mean liquids that readily separate from the solid portion of a waste under 

ambient temperature and pressure.

10. “Large Scale Fill”

Comment: Under the Subtitle D option, EPA would define the term “CCR Landfill” as: 

A disposal facility or part of a facility where CCRs are placed in or on land and which is not a 

land treatment facility, a surface impoundment, an underground injection well, a salt dome 

formation, a salt bed formation, an underground mine, cave, or a corrective action management 

unit. For purposes of this part, landfills also include piles, sand and gravel pits, quarries, and/or 

large scale fill operations. Sites that are excavated so that more ash can be used as fill are also 

considered CCR landfills. One of the fundamental problems with this definition is that it 

assumes that all CCR large-scale fill operations constitute the “disposal” of CCRs and that these 

operations therefore constitute CCR landfills. As EPA knows, a series of judicial decisions have 

established the parameters of RCRA’s statutory definition of "solid waste," which of course also 

limits the regulatory parameters of what can constitute a CCR landfill under RCRA Subtitle D. 

These cases make clear that the definition of “solid waste” must be interpreted in a common 

sense manner that extends “only to materials that are truly discarded, disposed of, thrown away, 

or abandoned,” and that materials destined for legitimate beneficial reuse or recycling are “not 

part of the waste disposal problem” and thus cannot be characterized as solid waste. American 

Mining Congress v. EPA, 824 F.2d 1177, 1186, 1190, (D.C. Cir. 1987) (“AMC”). As the D.C. 

Circuit reaffirmed in a subsequent opinion, the definition of “solid waste” is predicated on a 
85

material being “discarded” and “[s]econdary materials destined for [legitimate] recycling are 

obviously not of that sort.” Ass’n of Battery Recyclers, Inc. v. EPA, 208 F.3d 1047, 1051 (D.C. 

Cir. 2000), citing, AMC, 824 F.2d 1177. Given the controlling case law, it is simply incorrect to 

assume that all CCR large-scale fill projects involve the “discard” of CCRs.

Comment Number: EPA-HQ-RCRA-2009-0640-06956-14

Organization: Tri-State Generation & Transmission

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-09713-5

Organization: Indianapolis Power & Light Company (IPL)

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-09885-29

Organization: Progress Energy, Inc.

Commenter Type: Electric Utility Company

Comment Number: EPA-HQ-RCRA-2009-0640-10483-56

Organization: Utility Solid Waste Activities Group (USWAG) et al.

Commenter Type: Trade Association

Response: See section IV. C. of the preamble to the final rule: “The Effect of this Rule 

on Unencapsulated CCRs Disposed in Sand and Gravel Pits and Large Scale Fill Operations” for 

a detailed discussion of the Agency’s position on large scale fill operations.

11. “Lateral expansion”

EPA proposed “lateral expansion” to mean a horizontal expansion of the waste 

boundaries of an existing CCR landfill, or existing CCR surface impoundment made after [the 

effective date of the final rule].

Comment: “Lateral expansion” leaves open the question of whether the rule applies to 

vertical expansions constructed after the rule becomes effective. Most contiguous lateral 

expansions have some amount of overlap with previously approved fill areas, and some 

expansions are strictly vertical extensions of the previously approved fill area. If EPA is to 

include both lateral and vertical expansions in the rule, one option is to make the definition more 

general by using the term “Expansion” so that vertical expansion (raising dams) is included, or 

adding a separate definition for vertical expansion.
86

Comment Number: EPA-HQ-RCRA-2009-0640-06416-48

Organization: Wisconsin Department of Natural Resources (WI DNR) and Public Service 

Commission of Wisconsin (WI PSC)

Commenter Type: State Government

Response: The Agency agrees with the commenter and is not finalizing definitions for 

either lateral expansion or vertical expansion. Instead, EPA is finalizing a definition for 

expansion which encompasses lateral as well as vertical expansions. The Agency notes that EPA 

stated in the proposed rule that we were not regulating vertical expansions (see 75 FR 35199). 

The Agency took this position to allow for additional capacity in the event existing CCR surface 

impoundments closed as a result of the final rule. For the same reason, EPA is not subjecting 

vertical expansions to the requirements of today’s final rule with one exception. Vertical 

expansions must meet the structural integrity criteria as described in section VIII. B. 5. C of the 

preamble to the final rule. 

12. “Minefill”

EPA proposed a definition for the term minefill to mean a project involving the 

placement of CCRs in coal mine voids for use as fill, grouting, subsidence control, capping, mine 

sealing, and treating acid mine drainage, whether for purposes of disposal or for beneficial use, 

such as mine reclamation. 

Comment: EPA proposed a definition for the term minefill in the preamble but not in 

either of the proposed regulations. EPA should include a definition for minefilling in the 

regulation.

Comment Number: EPA-HQ-RCRA-2009-0640-08840-1

Organization: Electric Power Generation Association

Commenter Type: Trade Association

Response: In today’s rule EPA is clear that the rule does not apply to CCR placement at 

active or abandoned underground or surface coal mines. Therefore, EPA sees no reason to 

include a definition for minefill or minefilling in the regulation.

13. “Sand and gravel pit and/or quarry” 

EPA proposed a “sand and gravel pit and/or quarry” to mean an excavation for the 

commercial extraction of aggregate for use in construction projects.
87

Comment: The term is both too specific and too vague. It specifies commercial 

extraction of aggregate, which leaves out noncommercial extraction, such as gravel pits operated 

by municipalities, and excludes metallic mineral mines, nonmetallic mining for other than sand 

and gravel, and coal mines. If the point is to exclude non-engineered situations from being used 

for CCR disposal, this should be dealt with in an applicability section rather than attempting to 

ban certain disposal options by use of definition.

Comment Number: EPA-HQ-RCRA-2009-0640-06416-48

Organization: Wisconsin Department of Natural Resources (WI DNR) and Public Service 

Commission of Wisconsin (WI PSC)

Commenter Type: State Government

Response: EPA agrees that the use of the term “commercial extraction” renders the 

proposed definition too narrow, as there is no basis for distinguishing between commercial and 

non-commercial extraction, either because of the risks these activities pose, or any other 

consideration relevant to this rulemaking. EPA is, therefore, revising as follows: 

Sand and gravel pit and/or quarry means an excavation for the extraction of aggregate, 

minerals, or metals. The term sand and gravel pit and/or quarry does not include 

subsurface or surface coal mines.

14. “Uniquely Associated Wastes”

In the proposed rule, EPA proposed to codify a definition of uniquely associated wastes

as “low-volume wastes other than those defined as CCRs that are related to the coal combustion 

process. Examples of uniquely associated wastes are precipitation runoff from coal storage piles 

at the electric utility, waste coal or coal mill rejects that are not of sufficient quality to burn as a 

fuel, and wastes from cleaning boilers used to generate steam.” This definition was based on a 

list of uniquely associated wastes proposed in the May 22, 2000 Regulatory Determination. A 

brief history of the uniquely associated wastes generated by electric utilities is included in the 

docket for today’s rule.

The Agency received few comments on the definition of uniquely associated wastes. 

Generally, the commenters stated that EPA needs to revisit its list of uniquely associated wastes, 

to include items from prior determinations that appear to have been omitted and to be more 

consistent with historical interpretations and regulatory determinations. 
88

Comment: EPA should adopt a definition of uniquely associated wastes under the Subtitle 

D approaches that is more consistent with historical interpretations and regulatory 

determinations.

Comment Number: EPA-HQ-RCRA-2009-0640-08864-5

Organization: JEA

Commenter Type: Electric Utility Facility

Comment Number: EPA-HQ-RCRA-2009-0640-10497-8

Organization: Seminole Electric Cooperative, Inc. (Seminole)

Commenter Type: Electric Utility Company

Response: EPA agrees that the uniquely associated wastes, although covered by the 

Bevill exemption, are not subject to these rules, which apply solely to solid waste management 

activities with CCR. EPA is not finalizing a definition for “Uniquely Associated Wastes,”

instead EPA is codifying a list of the wastes that are "uniquely associated" with the Bevillexempt fossil fuel combustion wastes as part of today's final rule at §261.4(b)(4) (see Section X 

in the preamble to the final rule).