# 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 2014i

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 Re gulatory and May 2000 Bevill Regulatory Determinations regarding CCR and to list CCRs as special wastes subject to hazardous waste regulation s 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, str uctural 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 regulator y 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 . Altho ugh 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 I nternet 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, WJ C 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 ri sks 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 subti t le 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 Useiii

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 dump ing 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 (3521 0, 35205) Section 4.7 - Subtitle D Regulatory Language Changes/Suggestions1

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 . T h e proposed rule would not address the placement of CCRs in minefills . The U . S . Department of Interior (DOI) and EPA w ill 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 thi s area. 1 In addition, propos ed 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 non utility boilers burning coal. 1 . EPA Should Clarify Whether States’ or Federal Regulations Take Precedence. Comment : Should there be a discussion as to who se (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 encourage s 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 cr iteria . 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 auth orities . 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 federa l 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 adop t 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.” Ibid2

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 exe m pt 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 permit ting, 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 desig n, operation, closure, post closure 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 require ment will meet the 4004(a) standard . As discussed in Section IV of the preamble to the final rule, the mere existence of state require ment s for state approv al 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 are3

variances or exemptions granted) . And as discussed in Section IV, EPA lacks sufficient information to make any determination o n 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, leachat e collection systems, and other modern controls . The liners and leachate collection systems in these modern facilities were approved by state regulatory agencies and were deemed protective of human health and the environment . However, in many cases the l iner 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 e xisting 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 f inal rule, EPA does not have a record demonstrating the adequacy of state programs . However, u nder 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 - 7 cm/sec , ( 2 ) a composite liner that meets the requirements of §257.70(b); or ( 3 ) a n 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 CCR4

surface impoundments are required to e ither 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 a pply 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 : T he 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 requir ements of the final rule. 5 . CCR Use at Coal Mines.5

Comment: T he 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 se ctor 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 . I t 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 Company6

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 Da te 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 criteri a180 days after promulgation of the final rule . F acilities 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 mo nitoring 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 pla ce 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 an7

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 s urface 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 Protectio n Commenter Type: State Government Response: EPA would also prefer a full regulatory program that includes permitting and financial assurance however , t he 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 s ubtitle 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 adop t the rule within one year. Comment Number: EPA - HQ - RCRA - 2009 - 0640 - 06852 - 8 Organization: Green Delaware Commenter Type: Advocacy Group Comment : T he 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 sta tes 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 final8

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 promulgatio n . 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 sta ndards. 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 s pecified 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 ye ars 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 to9

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 su bsection 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 fi ve 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 th e 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 impoundmen t located in an unstable area, and presumably unable to show the landfill components will not be compromised, would be allowed a time extension for closure10

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 y ears . 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 : T he 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 all ow 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 defin ed. Comment Number: EPA - HQ - RCRA - 2009 - 0640 - 06313 - 99 Organization: Earthjustice et . al. Commenter Type: Advocacy Group Comment : I f 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 a nd 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 - specif ic 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 y ears. 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 : T imelines 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 Comp any13

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 - RC RA - 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 Company14

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 Numb er: 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 establis hing 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 a pproved 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 . Com ment 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 Company15

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. Co mment 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 : U nder 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 The n, 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 and16

to accomplish the switch to dry, which mean s 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 wi ll 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 increase d post - closure maintenance and excess constructio n 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 - 06 40 - 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 s ite 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 is17

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 propo sal, 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 y ears 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 d esign, 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, const ruction, 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 exten t 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 f rame for closure but allow closure under a state approved program that provides an appropriate amount of time to effectively close18

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 re quired 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 t he 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 o perator 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 s ubpart D requirements (i.e., CCR landfills and19

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 n umerous 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 ru l e, 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 an d 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 : T he 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 com bustion 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 Envi ronmental 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 Company20

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 s ub title D, refers to “CCR landfills , ” which in turn refers to “CCR , ” whic h are defined in terms so general that non utility CCR disposal facilities seem to be included, versus the more specific reference in s ection 261.4(4), RCRA s ub title 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 is21

trying to do too much in the definition for effectiveness, and banning non - landfill no n - 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 s ubtitle 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, t he applicability of the Subtitle D and D’ options should be limited in sc ope 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 Company22

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 - onl y 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: T rade 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 misunder standing, §257.50 of t he final rule specifies that the requirements apply to the disposal of CCR s 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 CCR s 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 I

mpoundments 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 fac ilities (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 impo undments23

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 com pliance 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. Com ment 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. Com ment 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 Ty pe: Electric Utility Company24

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, p onds, 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 Respon se to Comment s in Section VI . C . 3 . B of the preamble to the final rule . ) c . EPA Should Differentiate Between Temporary and Permanent Surface Impoundments. Comment : I t is important that EPA differentiate between temporary and permanent surface impoundments in any final standards 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 Commen ter 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 load ings that create the potential for structural instability . These units therefore pose the same risks of25

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 : Th e 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 - 200 9 - 0640 - 06416 - 27 Organization 1 : Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC) Commenter Type: State Government Comment: U

nder § 257.40( b ) of the proposed s ubtitle 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 s ubtitle 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 s ubtitle 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 purpos e of generating electricity,” there is no similar exclusion under the proposed s ubtitle 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 s ubtitle 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 commenter s that the final rule should be clear as to which wastes are subject to today’s regulation . Therefore, §257.50 of t he final rule specifies that the requirements do not apply to fly ash, bottom ash, boiler slag and flue gas emission control wastes, generate d 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 secto r would be subject to26

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 wo uld 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 s ubtitle D option is that it applies only to active disposal sites and doesn’t addres s 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 . S ubtitle C ensures that the facility oper ator 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 clo sure 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 wit h 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 i s operating . Thus several of the provisions EPA is proposing under RCRA subtitle D either27

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 impoundm ents 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 effecti ve 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 dete rmined 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 s hould be dealt with in the applicability section of the rule, not in definition s 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 beneficial28

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 cease d 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 an d 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 clarifica tion 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 En vironmental 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 t he 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 i mpose 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 r egulations the final rule) clearly states that c ompliance 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: T he 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 . I t 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 re gulatory 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 Association30

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. C omment s 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, w hile most CCRs are currently disposed of at electric utility owned CCR di sposal 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 consequ ence 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 mon ofill 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 se nse to31

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 r eceived 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 ad ditional 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 MS W 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 expe cted 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 u se 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 Orga nization: NiSource Corporate Services Commenter Type: Electric Utility Company Comment Number: EPA - HQ - RCRA - 2009 - 0640 - 06532 - 28 Organization: Southern Illinois Power Cooperative32

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 prote ction 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, t here 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 p urchasing 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 develo ped 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 la ndfills 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 proposin g in this proposed rule then those municipal solid waste landfills that are utilizing alternate designs or ground water monitoring33

would be excluded from receiving CCRs . In doing so the capacity for managing CCRs in Nebraska would unnecessarily be decreas ed. 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 m aterials 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 qu antities . 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 : B y 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 CCR s . While most CCR s are currently disposed of at electric utility owned CCR disposal sites, there is no prohibition against CCR s being disposed of in state permitted MSW landfills . A reading of th e current CCR regulations under the RCRA s ubtitle D approach would require that a state permitted MSW landfill that has previously disposed or may dispose of any quantity of CCR s would be fully34

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 regula tions 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 dispos al 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 authoriz ed 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 standard s 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 desi gn 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 be yond 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 addit ional regulations . Comment Number: EPA - HQ - RCRA - 2009 - 0640 - 09273 - 1335

Organization: Iowa Department of Natural Resources (IDNR) Commenter Type: State Government Response : The Agency agrees with th e s e comment ers . Thus, i f CCR s 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 ru le . Therefore, the requirements of today’s final rule do not apply to MSW landfills that accept CCR s for disposal or for use as daily cover . However, EPA encourages owners or operators of MSW landfills that use CCR s as daily cover to ensure that appropri ate fugitive dust controls are employed to prevent off - site releases of CCR dust . Comments and EPA Responses on the Definitions C. Definitions . E PA 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 t o certain regulatory requirements, e.g., seismic impact zone . D efinitions 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 pow er 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 c omments 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 im poundment. Th is cradle to - 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 s ubtitle 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 “ I nactive CCR surface impoundment ” to the final rule as follows. Inactive CCR surface impoundmen t 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 act ivities in accordance with § 257.110.”37

or after [INSERT DATE 180 DAYS FROM THE DATE OF PUBLICATION IN THE FED ERAL 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 Definiti ons of Aquifer Causes Confusion . Comment: In the s ubtitle 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. D ifferent wording is used in the current rule for s ubtitle 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 s ubtitle 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 b e 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 wa y 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 a ssertion 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 a38

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 fu ndamental 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 g roundwater 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 pu blic 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 contamin ation 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 p robab ilit y 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 impermiss ibly 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 o f 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. T he 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 grou nd 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 ens ure 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 t o 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 v adose 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 - RCR A - 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 under40

RCRA subtitle D, EPA is finalizing the definition of aquifer as proposed to be consi stent 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 cont aminants. 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 land fills 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 leach ate 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 device s. 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 mo nitoring in the uppermost aquifer is sufficient to protect groundwater. 3. “Coal combustion product s” 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 c oal combustion product s and coal combustion residuals throughout the preamble. Commenters note d 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 Association41

Comment Number: EPA - HQ - RCRA - 2009 - 0640 - 08844 - 6 Organization: Natio nal 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 Gos s 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 T ype: 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 combustio n 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 t hat 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 landfills42

regardless of the ultimate fate of the CCRs. Likewise, a ll 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 t he 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 Su btitle 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 gase s 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 Facility43

Response : EPA acknowledges the inconsistencies between the proposed Subtitle D rule, the preamble and the propos ed 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 § 257 is 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 regula tions under S ubtitle 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 fl uidized 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 coal burning 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 - Elec tric 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 preambl e 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 O rganization: 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: W hile § 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 prim arily 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 t he 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 electrici ty 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 quanti ties 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 ofte n 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: NiS ource 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 Company46

Response: We generally agree with the commenter, but we have determined t his 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 landfill s 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 pur pose 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 w astewaters with de minimus amounts of CCR and does not have a record of damage cases assoc iated 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 accu mulation of CCR and liquids, and the unit treats, stores, or disposes of CCR . g. Definition Should Add “Destined for D isposal . ” 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 desulf urization 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 benef icial 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 regula ting 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 Gener al 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 land fill ” 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 co nsidered 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 “so lid waste” because they have not been “discarded.” In addition, the phrase “large scale fill operations” is unlawfully vague and48

cannot be included in a final regulatory definition without a supplemental proposal setting forth discernible and readily under standable 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 approac hes 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 operat ions 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 fundam ental 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 i n 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 en gineered 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 Company49

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 (AEC C) 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 Association50

Comment Number: EPA - HQ - RCRA - 2009 - 0640 - 08841 - 33 Organization: Deseret Generation and Transmission Co - operative Commenter Type: Electric Ut ility 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 : W ithin 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 incorporate s requirements to demon strate 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 do es not meet the definition of a beneficial use of CCR. Accordingly, t he 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, a nd any placement of CCR on the land that do es 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 fi nal rule (EPA - HQ - RCRA - 2009 - 0640). b. Clarify That CCR Landfills Do Not Include Municipal Solid Waste Landfills That Accept CCR . Comment: The d efinition 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 th is excludes co - disposal with MSW or other non MSW, 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 s ubtitle 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 CFR52

25 8, 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 o wners or operators of all MSWLFs ensure that the units not violate any applicable requirements developed under a State Implementation Pl an (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 contam inants 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 rea sons 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, t he pH of most CCR leachate tends to be slightly alkaline to near neutral dependin g 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 (SO 4 ) , magnesium (Mg) , iron (Fe(+2)) , zinc (Zn) , nickel (Ni) , arsenic (As) , s elenium (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 monitor ing constituent s 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 the53

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 CCR s . 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 subj ect 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 o ther 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. I t 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 Company54

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 Comm enter 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 capt ure 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 Compan y55

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 hav e 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. Co mment 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 Numb er: 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 associat ed 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 l andfill " 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 st aged 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 requireme nts 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 en vironment 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 Org anization: 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 Comme nt Number: EPA - HQ - RCRA - 2009 - 0640 - 08841 - 33 Organization: Deseret Generation and Transmission Co - operative Commenter Type: Electric Utility Company57

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 Energ y, 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 produc ts. 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 Utili ty 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 1 80 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 facili ty 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 facilit ate 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 accumulat ion 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 p osed 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 in cluding piles in the definition of CCR landfills would subject temporary piles to the liner and groundwater59

monitoring requirements. Nevertheless, EPA is including CCR piles in the definition of CCR landfill because we believe these piles can pose s imilar risks from contaminants leaching into groundwater, and from fugitive dust, as do landfills . However, EPA ha s also finaliz ed a definition for CCR pile or pile specif ying that CCR that is beneficially used is not a CCR pile . d. E PA 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 lan dfills. 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 no t 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 includ es on - site piles. ( As mentioned above, w e have also added a definition for CCR pile or pile specif

ying 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 : T he proposed definition of a CCR landfill must be am ended 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 mine land 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,” sh ould 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 p rogram 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. Bo th 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. I f 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 landfil l." Such a result would directly contradict EPA's stated61

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 t hat 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 restruc turing 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 sur face 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 Off

ice 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 standar ds 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 Company62

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 C CR 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 e arthen 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 aer ation 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: T his 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, hydraulica lly 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 ter tiary 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 managemen t 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 f

rom wastewater containing de minimis amounts of CCR from an upstream63

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 rece ive 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 p roposed 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 Organizati on: 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 Company64

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 C oalition (TCCPC) Commenter Type: Trade Association Comment Number: EPA - HQ - RCRA - 2009 - 0640 - 07489 - 24 Organization: Council of Industrial Boiler Owners (CIBO) Commenter Type: Trade Association65

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 Ligh t 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 Company66

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 Info rmation 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 amoun ts 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 runof f 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 th e 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 sur face 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 - 5 9 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 c ritical 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 th o s e surface impoundments that initially receive and settle the solids, but would exempt secondary and tertiary settling and polishing impoundments and their wastewater contents. Both approaches67

would also exempt other surface impoundments that are used to m anage 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 Or ganization: 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 tha t are designed specifically for the accumulation of CCRs, the definition gave examples of impoundments that68

function for purposes other than the accumulation of CCRs; e.g., settling and aeration pits, ponds, and lagoons. Therefore, EPA is finalizing a def inition 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 Comment s in Section VI. C. 3. B of the preamble to the final rule . ) Comm ent : 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 C orporate 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 surfac e 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 re quire 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 perman ent 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 Commente r 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. A t 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 acr e per each 500MW increment of on - site70

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 - 098 80 - 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 landfi ll 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 Disc harges 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 no t 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. Comm ent 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 contaminan ts 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 lan dfills. Alternat iv ely, 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 im poundments 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 En ergy 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 Company72

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 req uire 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 Company73

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 req uirements 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 regulati ons 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 accumu lation 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 im poundments as the base for constructing new CCR landfills. The subsequent new CCR landfill is typically referred to as an “overfill.” Overfills are a n 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 protective74

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 a cts as a final cover over the old CCR disposal unit. In such cases the A gency 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 impoundm ent, EPA has included o verfills 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 bas e 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 im poundments. 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... ” T he 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 les s, than the hydraulic

5 See also “Using Fly Ash to Co nstruct 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 in tegrity 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 of76

conservatism, a size threshold of half this volume - or 10 - acre - feet or more - s hould 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 surfac e 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 require ments. 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 defin ition 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 propose d “ 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 on site, physical construction program has begun; or (2) the owner or operator has entered into contractual obligations

– which cannot be cancelled or mod ified 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 t he 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 resi dential 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 CC R 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 dat e 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 cl arifying 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 Latera l 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, r egardless 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 - ba sed 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 wo uld 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 con tract 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 Company79

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 o r 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 dis agrees with these commenters that there should be no distinction, from an environmental standpoint, between undeveloped areas where federal, s tate and local approvals or permits necessary to begin physical construction have been obtained, and undeveloped areas80

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 e xisting hazardous waste management (HWM) facility or existing facility found in 40 CFR §260. Therefore, the defin ition 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 comple ted 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 ti me.” 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, th e proposed definition was based on the definition for e xisting 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 meaning s for the term s “substantial loss” and “reasonable time ” do not exist which could make enforcement on these ground s difficult. Although, EPA does not have experience with owners or operators us ing 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 REGI STER ] 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 t o begin physical construction and a continuous on site , 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 “ e xisting CCR s urface i mpoundment ” needs to be modified to clarify that it does not include surface impoundments that cease d receiving CCRs before the effective date of the rule. The proposed definition includes, in pertinent part, an impoun dment that “was in operation ...p rior 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. Plainl y, units that are no longer receiving CCR on82

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, E PA 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 peri odically dredged out during their83

normal operating life to allow for their continued use are not inappropriately characterized as a “ n ew CCR s urface i mpoundment” when the facility reinitiates placement of CCRs in the surface impoundment after dredging oper ations 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 impoundme nt 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, EP A 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 18 0 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 obta ined the federal, state, and local approvals or permits necessary to begin physical construction and a continuous on - site, physical construction84

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 definit ion 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 S ubtitle 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 legitimat e 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 subseque nt opinion, the definition of “solid waste” is predicated on a85

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 o pen 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 R esponse : The Agency agrees with the comment er 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. T he 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 fin al 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. 1 2 . “Minefill” EPA proposed a definition for the term m inefill 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 i n 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 grave l 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 - engin eered 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 Dep artment 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: S and and gravel pit and/or quar ry 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 Waste s” In the proposed rule, EPA proposed to codify a defin ition 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 uni quely 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 u niquely 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 Waste s,” instead EPA is codifying a list of the wastes that are "uniquely associated" with the Bevill exempt fossil fuel combustion wastes as part of today's final rule at § 2 61 . 4(b)(4) (see Section X in the preamble to the final rule).